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AMERICA'S CASE AGAINST GERMANY 



AMERICA'S CASE 
AGAINST GERMANY 

BY 

LINDSAY ROGERS, ph.d.. ll.b. 

ADJUNCT PROFESSOR OF POLITICAL SCIENCE IN 
THE UNIVERSITY OF VIRGINIA 




NEW YORK 

E. P. DUTTON & COMPANY 

681 FIFTH AVENUE 



57 



COPYRIGHT, 1917, 
By E. P. DUTTON & CO. 



JUL 19 1917 



printed in the United States of Hmerfca 



■CI.A470332 



TO 

MY FATHER AND MOTHER 



PREFACE 

I have attempted in the pages that follow to 
describe the origin and development of the con- 
troversy which was the immediate cause of war 
between the United States and Germany. The 
diplomatic exchanges dealing with the subma- 
rine issue are not accessible to every one; and 
in any event they contain so much verbiage and 
are so arranged that they will not be resorted 
to in order to secure a knowledge of the issues 
involved. I have sought to furnish a chrono- 
logical account of Mr. Wilson's policy — narra- 
tive and explanatory, not critical or defensive, 
for it is too early to pass definite judgment. 

There are unmistakable evidences that the 
justice of our case against Germany has not 
been clearly understood even by loyal Ameri- 
cans. If one reads the debates in Congress on 
the war resolution or armed neutrality, for ex- 
ample, he cannot fail to discover an amount of 
misinformation which is surprising and dis- 

vii 



viii PREFACE 

heartening. And so I have thought it worth 
while to give a treatment of the points of in- 
ternational law involved as brief and untechni- 
cal as is consistent with the necessity for 
explaining the legal grounds of the American 
position — particularly with regard to the sub- 
marine as a new weapon, not subject to estab- 
lished rules, the status of armed merchant ships, 
the problem of munition exports, and the dif- 
ference between the English and German 
" blockades.' ' These are the problems which 
seem to have caused the greatest confusion of 
thought, and no attempt has yet been made to 
treat them together and to furnish the basis 
upon which war with Germany was inevitable. 
In the introductory chapter I refer briefly 
to the fact that President Wilson has ascribed 
our participation in the war to the duty of 
fighting for peace, democracy, and liberty 
against a state which has committed terrible 
outrages on these ideals, and that there are 
grounds, other than the legal one, upon which 
our case against Germany may be rested. The 
formulation of a moral indictment is not here 
attempted; it has already been repeatedly 



PREFACE ix 

drawn up in the literature which seeks to ex- 
plain the purposes of those nations which are 
now our Allies. Germany was guilty of a brut- 
ish invasion of human rights everywhere, and 
it was simply one phase of this — the callous 
assassination, not alone on the high seas, of 
noncombatant citizens of both sexes and all 
ages — which so aroused the indignation of 
America that war was inevitable. The mere 
unlawfulness of the submarine warfare was 
not decisive; that might have been overlooked. 
But it is nevertheless true that the purely legal 
issue is of fundamental importance, because 
if American citizens had not had a legal right 
to travel unmolested, even when on armed mer- 
chantmen ; if American vessels, no matter with 
what cargoes, had not had a legal immunity 
from destruction until the lives of their pas- 
sengers and crew were safeguarded, the United 
States would have been unable to protest 
against the war zone decree, to announce that 
Germany would be held to a "strict accounta- 
bility,' ' and to consider the sinking of the 
Lusitania "deliberately unfriendly. y ' But for 
the fact that the United States could rest its 



x PEEFACE 

case upon the unquestioned principles of inter- 
national law, it is certain that the exercise of 
personal privileges, unprotected by interna- 
tional agreement, would not have been sup- 
ported at the cost of war. 

To be sure, Mr. Wilson's protests were in 
part calculated to stay an international ruth- 
lessness which demanded our condemnation 
and threatened, if it did not already affect, our 
interests. But the repeated disregard by Ger- 
many of legal rights was responsible for the 
moral indignation which made war inevitable, 
and it is of fundamental importance, I take it, 
that the correctness of America's legal position 
be understood, because, but for it, we would 
still be at peace. It is only one, but it is the 
primary and indispensable part of America's 
case against Germany, and to contribute to its 
understanding — which should be had by every 
intelligent citizen — this book has been written. 



BIBLIOGRAPHICAL NOTE 

A vast amount of material has appeared in 
print dealing with international law and the 
war generally, and with the submarine question 
particularly. Much of this is of a very ephem- 
eral character, and it would be futile to attempt 
any exhaustive bibliography. Attention may, 
however, be properly drawn to some of the 
more accessible and important authorities. 

The diplomatic documents on the submarine 
controversy have been published in several 
forms. The Department of State has issued 
three White Papers (the last appearing on 
August 12, 1916) ; the correspondence then 
available appears, very competently edited, in 
Supplements (July, 1915, and October, 1916) to 
the American Journal of International Law; 
some of the documents are available in the con- 
venient form of the pamphlets of the World 
Peace Foundation and the American Associa- 
tion for International Conciliation; many of 

xi 



xii BIBLIOGRAPHICAL NOTE 

them were published in the Congressional 
Record from time to time, and Congressman 
S. D. Fess has attempted to collect them all 
under the title, "The Problems of Neutrality 
When the World Is at War" (64th Congress, 
2d Session, House Document, 2111). Most of 
the more important notes appear without 
abridgment in The New York Times Current 
History, which is valuable also for an account 
of all the submarine outrages, some of which 
did not figure in the diplomatic exchanges. 

The most elaborate secondary work is Dr. 
Coleman Phillipson's International Law and 
the Great War (London, 1915, and New York, 
1916), but this was completed immediately after 
the sinking of the Lusitania. More valuable is 
the material which has appeared in the Amer- 
ican Journal of International Law. Under the 
general heading "International Law and the 
European War," Professor James W. Garner 
has discussed "The Use of Submarine Mines" 
(Vol. IX, p. 86); "Contraband, Eight of 
Search,and Continuous Voyage" {Ibid., p. 372) ; 
"War Zones and Submarine Warfare" {Ibid., 
p. 594) ; "Destruction of Neutral Merchant Ves- 



BIBLIOGRAPHICAL NOTE xiii 

sels" (Vol. X, p. 12) ; "The Sale and Exporta- 
tion of Arms and Munitions of War to Belliger- 
ents" (Ibid., p. 749). Elaborate editorials by 
the distinguished editor of the Journal, Dr. 
James Brown Scott, cover practically all of the 
legal questions to which the war has given rise. 
Worthy of mention also are the following: 
Edwin J. Clapp, Economic Aspects of the War 
(New Haven, 1915), which attacks England's 
restrictions on trade ; Sir Francis Piggott, The 
Neutral Merchant and Contraband of War and 
Blockade (London, 1915), which is by far the 
best defense of the Orders in Council and de- 
serves an American edition; Sir Frederick 
Smith, The Destruction of Merchant Ships wi- 
der International Law (London, 1917) ; A. 
Pearce Higgins, Defensively Armed Merchant 
Ships and Submarine Warfare (London, 1917), 
which is an amplified edition of his American 
Journal of International Law article (Vol. 
VTII, p. 705; also published as Senate Docu- 
ment No. 332, 64th Congress, 1st Session) ; 
Ealeigh C. Minor, "The Eule of Law Which 
Should Govern the Conduct of Submarines with 
Eeference to Enemy and Neutral Merchant 



xiv BIBLIOGEAPHICAL NOTE 

Vessels and the Conduct of Such Vessels 
Toward Submarines ' 9 (Proceedings of the 
American Society of International Law, 1916, 
Vol. X, p. 51) — an extremely clear statement of 
the rules, and William Cullen Dennis, "Bights 
of Citizens of Neutral Countries to Sell and 
Export Arms and Munitions of War to Bellig- 
erents" (Annals of the American Academy of 
Political and Social Science, Vol. LX, p. 168). 
Special attention should be directed, finally, 
to two articles, each of which gives, I think, the 
best discussion thus far of its particular sub- 
ject. An anonymous writer, evidently an Amer- 
ican, contributes to The Round Table (June, 
1916, No. 23) a remarkably able article on "The 
German- American Submarine Controversy," 
which discusses the most important points up 
to the, sinking of the Sussex; and Professor 
Monroe Smith gives in the Political Science 
Quarterly (December, 1916) a sometimes cur- 
sory but always incisive and fair consideration 
of "American Diplomacy in the European 
War." 



TABLE OF CONTENTS 



Preface vii 

Bibliographical Note xi 

CHAPTER 

I Introductory 1 

II The War Zone Decrees and Germany's 

Submarine Blockade 11 

III Some Points of International Law . 40 

IV The "Lusitania" and Other Outrages 60 
V The German Pledges 97 

VI The Trade in Munitions of War . . 109 

VII Submarine Warfare in the Mediter- 
ranean 138 

VIII Armed Merchantmen 153 

IX The "Sussex" and the Pledges. . . 170 

X The Parting of the Ways .... 189 

XI Overt Acts, Armed Neutrality, and 

War 207 

XII The Right of Retaliation .... 224 

Appendix : (i) President Wilson's Address to 
Congress Asking for a Declaration of War. 
(ii) Official List of German Outrages on 

American Ships and Lives 237 

Index 259 



AMERICA'S CASE AGAINST GERMANY 



AMERICA'S CASE AGAINST 
GERMANY 

CHAPTEE I 

INTRODUCTOBY 

No war in which the United States has ever 
engaged has had greater justification than the 
one recognized on April 6, 1917. The language 
of the congressional resolution, which asserted 
that the Imperial German Government had 
"committed repeated acts of war" and for- 
mally declared a status which had been "thrust 
upon" the United States of America, was 
strictly accurate, because for more than two 
years President Wilson attempted in vain to 
persuade Germany to abandon the wanton sink- 
ing of merchant vessels in disregard of the 
undisputed rules of international law and ele- 
mentary dictates of humanity. In the refusal 
of the Imperial Government to cease the murder 

l 



2 AMERICA'S CASE AGAINST GERMANY 

of American citizens and the destruction of 
American property is to be found the immediate 
cause of the entrance of the United States into 
the European conflict ; and while our abandon- 
ment of the intolerable role of neutral enables 
us formally to declare what many of us have 
long felt — that the Allies have been fighting for 
our ideals ; that the submarine warfare is simply 
symptomatic of an international ruthlessness 
which cannot be allowed to triumph; that, in 
President Wilson's phrase, it is a warfare 
against all mankind, against all nations — nev- 
ertheless the reason why the United States 
finally decided to substitute force for argument 
was the continued assertion by Germany of the 
right to use the submarine against commerce. 
This, he maintained, could not be done except 
in violation of principles of international law 
so humane and so fundamental that their aban- 
donment by a proud, self-respecting nation was 
unthinkable. 

The immediate cause of a war may be lost 
sight of in larger issues and this is abundantly 
true in the present instance. We are prone to 
justify our entrance on the basis of American 



INTRODUCTORY 3 

approval of the purposes of the Entente Allies 
and disapproval of the purposes of the Central 
Powers. In the opinion of a great many Amer- 
icans an international conscience would long ago 
have justified us in casting in our lot on the side 
of England and France. Before the submarine 
campaign was inaugurated it had become trite 
to say that American public opinion was whole- 
heartedly sympathetic with the Allies; that 
America was very generally convinced that if 
Germany did not will the war, she did not exert 
herself — at least until too late — to avert such 
a terrible catastrophe; that the theory of the 
State as power — preached by Treitschke and 
popularized by Bernhardi — is exactly contrary 
to the political beliefs of democratic, liberty-lov- 
ing America; that in a struggle between Prus- 
sian military autocracy and democratic ideals 
our support could not but be given to the latter, 
and that America abhors this Prussian ideal 
as evidenced in actual fact : the invasion of Bel- 
gium, the atrocities, the violations of interna- 
tional law — all deeds in fulfillment of the in- 
junction of the German War Book that an effort 
should be made to destroy the complete mate- 



4 AMERICA'S CASE AGAINST GERMANY 

rial and moral resources of the enemy. "War 
is an act of violence which in its application 
knows no bounds." The submarine campaign, 
with its disregard of the distinction between 
combatants and noncombatants, with its viola- 
tion of sacred principles of international law 
and humanity, has simply been another evidence 
of this theory. The Allies are fighting our bat- 
tle; they have been sacrificing for everything 
we believe in to combat the things that we do 
not believe in. Only an Allied victory can in- 
sure a stable peace and America should not 
stand indifferently, but should make sacrifices in 
its turn to fulfill this noble purpose. 

Again, the belief is now widely held that the 
refusal of the United States to continue on 
friendly relations with Germany may be justi- 
fied on the ground of policy, on a consideration 
of our own material interests as the greatest 
nation of the Western World. A successful 
outcome of the submarine campaign would mean 
the destruction of the British Navy, first of 
all, and secondly, the dismemberment of the 
British Empire. Without England 's sea power 
to support it, the Monroe Doctrine would be- 



INTRODUCTORY 5 

come a mere hrutum fulmen; it would be safer 
to cancel it as obsolete rather than attempt to 
enforce it. The security of the colonial posses- 
sions of the United States would be endangered 
and this country would face a most calamitous 
trade war. The points need not be argued. A 
moment's reflection is all that is necessary to 
establish them; and incontrovertible evidence 
has been furnished by the Zimmermann propo- 
sal to Japan and Mexico to join with Germany 
in an alliance against the United States. 

But these considerations were not the ones 
which forced the United States into war with 
Germany. The real reason was assigned by 
President Wilson when he announced to Con- 
gress that diplomatic relations had been broken : 
Germany had wantonly violated international 
law ; she had disregarded the absolute immunity 
which all neutral citizens have when on the high 
seas in private, unresisting vessels; she had 
made pledges only to break them, and her final 
announcement was so flagrant in its disregard 
of international right, so insulting in its de- 
mands upon the United States, that self-respect 
alone was sufficient to compel the action then 



6 AMERICA'S CASE AGAINST GERMANY 

taken, and when, during the ensuing two 
months, Germany continued her submarine cam- 
paign, if anything more ruthlessly, war, as the 
ultima ratio, was forced upon the United 
States ; and a nation which up until then had at 
times appeared too ready to compromise, too 
eager to avoid an absolute impasse in the con- 
troversy, prepared to prosecute its right by 
force. 

Mr. Wilson's address to Congress asking for 
a declaration of war recognized the grounds 
other than those upon which his diplomatic 
notes had been based. "We are now," he said, 
"about to accept the gage of battle with this 
natural foe to liberty and shall, if necessary, 
spend the whole force of the nation to check and 
nullify its pretensions and power. We are 
glad, now that we see the facts with no veil of 
false pretense about them, to fight thus for the 
ultimate peace of the world and for the lib- 
eration of its peoples, the German peoples in- 
cluded; for the rights of nations, great and 
small, and the privilege of men everywhere to 
choose their way of life and obedience." 
And the war was demanded, also, for the pres- 



INTRODUCTORY 7 

ervation of our own safety, since the German 
Government " entertains no real friendship for 
us, and means to act against our peace and 
security at its convenience. That it means to 
stir up enemies against us at our very doors 
the intercepted note to the German Minister at 
Mexico City is eloquent evidence. ' ' 

Yet it remains true that, if it had not been 
for the submarine warfare, we would probably 
have remained at peace with Germany; and in 
regarding such a weapon as evidence that the 
Imperial Government refuses to subscribe to 
the humane practices of civilized nations and 
persists in denying one of international law's 
most fundamental principles — that the effects 
of war should be limited to the armed forces 
of the enemy ; in believing that we are fighting 
for liberty, democracy, and governmental de- 
cency, we should not forget the patience which 
has marked our protests to Germany, nor 
should we be unmindful of the fact that the 
contentions of the United States have been 
morally and legally correct in every particular. 

Great wars always cause the sacrifice of neu- 
tral rights. This is nothing to be wondered at, 



8 AMERICAS CASE AGAINST GERMANY 

since those rules of international law, the vio- 
lation or extension of which works such hard- 
ships on the nations which remain at peace, 
while sometimes marking — as with respect to 
contraband — a compromise between belligerent 
and neutral interest, have resulted largely from 
prize court decisions and from conferences of 
military and naval experts, both sources being 
greatly prejudiced in favor of the enlargement 
of belligerent right. In the present conflict, 
the United States has suffered very extensively 
and very vitally, not only on account of the 
magnitude of the struggle, but on account of 
the character of the violations of international 
law. On the part of one group of belligerents, 
these have involved only property rights and 
the question of damages is arbitrable. The 
other group of belligerents has taken over 
two hundred American lives — and the lives of 
at least two thousand other noncombatants — 
and has persisted in a policy so wanton that it 
could not be further endured. 

As President "Wilson said in April, 1916, when 
he threatened to break off diplomatic relations 
on account of the sinking of the Sussex, the Gov- 



INTRODUCTORY 9 

ernment of the United States has been patient 
to the point of tolerance; it has accepted suc- 
cessive explanations and assurances in good 
faith, and it has made allowance for unprece- 
dented conditions, but it could not continue to 
suffer violations of "the principles of humanity, 
the long established and incontrovertible rights 
of neutrals, and the sacred immunities of non- 
combatants/' With only protests the United 
States time and time again answered acts which 
were fully justifiable grounds for hostilities, and 
which even seemed to invite a declaration of 
war. But the pronouncement of January 31, 
1917 — that, with an avowed disregard for neu- 
tral as well as enemy noncombatants, women 
and children as well as men, Germany would 
sink all merchant vessels — made further 
friendly relations impossible; and the wholly 
unrestricted destruction — even of hospital ships 
— made war inevitable. 1 

1 The following dispatch, for example, appeared in the papers 
on April 29th: 

''Copenhagen, April 28. — Announcement was made before the 
Reichstag main committee in Berlin yesterday that Germany 
will adopt the sharpest reprisals if German prisoners are em- 
barked on hospital ships of the Allies and exposed to the danger 
of torpedoes. 7 ' 



10 AMERICA'S CASE AGAINST GERMANY 

And now that hostilities have begun, it is 
worth while to attempt a history of our patient 
protests, for they tell the story of repeated in- 
dignities and contain an adequate statement of 
the undisputed legal principles upon which our 
position has rested. They justify to the utmost 
measure our going to war with Germany, while 
meeting England's naval activities with only 
argumentative protests. It is to the story of 
our negotiations with Germany and comment 
on the points of international law in issue, that 
this book will be devoted. 



CHAPTER II 

THE WAR ZONE DECREES AND GERMANY^ SUB- 



The right to use submarines against merchant 
vessels — and it is the assertion by Germany of 
that right to which the United States has ob- 
jected — is bound up with the question of war 
zones, strategic areas from which private ves- 
sels are warned. The latter problem is a new 
one in international law and as yet largely un- 
regulated. One of the first applications of the 
principle that a certain portion of the high seas 
may be designated by belligerents ; that therein 
they may exercise their rights of capture and 
sinking to the fullest degree, and that neutral 
vessels are more likely to come to grief on ac- 
count of hostile operations, was in a Japanese 
ordinance issued two weeks before the outbreak 
of the war with Russia. Instead of a war zone 

the restricted vicinity was called a ' ' defense sea 

ll 



12 AMERICA'S CASE AGAINST GERMANY 

area," and among other regulations merchant 
vessels were forbidden ingress and egress at 
night. This involved no important questions of 
international law, 1 but in spite of the indefinite- 
ness of the rules concerning war zones, several 
considerations may be ventured. 

In the first place, while neutral vessels may 
be warned of impending danger if they enter 
the specified areas, it is indisputable that merely 
by conveying such a warning the belligerent 
acquires no additional rights within the zone 
other than those he has outside. The waters 
which are sought to be restricted remain a por- 
tion of the high seas and the neutral has a right 
to navigate them. Furthermore, while the Sec- 
ond Hague Peace Conference refused to adopt 
the proposal of the British delegation that the 
laying of mines in the open seas be absolutely 
prohibited, it is doubtful whether a belligerent 
has any right to sow mines in such places that 
neutral ships will be destroyed while engaged in 
peaceful navigation. 2 

1 A good discussion of the problem is to be found in Inter- 
national Law Situations, 1912, pp. 114-139. 

2 Two recent English writers of high authority attach "no 
special importance to the declaration issued by the British 



GEKMANY'S SUBMAEINE "BLOCKADE" 13 

A war zone in the present conflict was first 
declared by Great Britain on October 13, 1914, 
when an Admiralty announcement stated that 
His Majesty's Government had authorized a 
mine laying policy in certain areas, and that it 
would be dangerous for ships to cross these 
limits. This was simply a notice to mariners but 
three weeks later (November 3rd), the Admiral- 
ty announced that since the Germans had scat- 
tered mines indiscriminately on the main trade 
route from America to Liverpool via the North 
of Ireland with the subsequent destruction of 
innocent ships (and the White Star Liner Olym- 
pic had had a lucky escape), it would be "neces- 
sary to adopt exceptional measures appropriate 
to the novel conditions under which this war is 
being waged. ' ' Notice was therefore given 

"that the whole of the North Sea must be considered 
a military area. Within this area merchant shipping 

Admiralty affecting to make the North Sea 'a military area/ 
All that such a declaration can effect is to put neutrals on 
guard: to inform them that their presence in such waters will 
be regarded as suspicious, and that, when navigating there, 
they will be more than ordinarily liable to charges of contra- 
band trading or of unneutral service. Probably no more is 
meant." T. Baty and J. H. Morgan, War: Its Conduct and 
Legal Results, pp. 224-225. 



14 AMEKICA'S CASE AGAINST GERMANY 

of all kinds, traders of all countries, fishing craft, 
and all other vessels will be exposed to the gravest 
dangers from mines which it has been necessary to 
lay, and from warships searching vigilantly by night 
and day for suspicious craft. All merchant and fish- 
ing vessels of every description are hereby warned 
of the dangers they encounter by entering this area 
except in strict accordance with Admiralty directions. 
Every effort will be made to convey this warning 
to neutral countries and to vessels on the sea, but 
from the 5th of November onward the Admiralty 
announce that all ships passing a line drawn from 
the northern point of the Hebrides through the Faroe 
Islands to Iceland do so at their own peril." 

Ships wishing to trade with Norway, Den- 
mark, Holland, etc., were advised to come by the 
English Channel where they would be given 
sailing directions for a safe passage. Adher- 
ence to the routes advised would permit com- 
merce to reach its destination, ' ' so far as Great 
Britain is concerned, but any straying even for 
a few miles from the course thus indicated, may 
be followed by fatal consequences. " In a state- 
ment made to the House of Commons on No- 
vember 17th, Mr. Asquith said that for the first 
two months of the war Great Britain had ab- 



GERMANY'S SUBMARINE "BLOCKADE" 15 

stained absolutely from the use of mines outside 
of British territorial waters ; but Germany, the 
Admiralty declared, using a merchant vessel 
flying a neutral flag had sowed mines indiscrim- 
inately, and thus "wantonly and recklessly en- 
dangered the lives of all who travel on the sea 
regardless of whether they are friend or foe, 
civilian or military in character." A counter 
measure was therefore necessary. 

Against this action, the United States entered 
no protest. But, while the wisdom of acquies- 
cence seems doubtful, and while even by the 
British measure the lives of noncombatants 
were endangered, England's command of the 
seas enabled her to afford pilots to American 
ships and to reduce to a minimum the possi- 
bility of disaster so far as the mines laid by 
her were concerned. And England, it should be 
remembered, expressed the desire to safeguard 
neutral interests in every possible manner, and 
notified neutrals of the dangerous area in ac- 
cordance with the Hague Convention. The Ger- 
man mine laying was surreptitious and was 
denied, but that it was prior to the British 
measure seemed established. The German "war 



16 AMERICA'S CASE AGAINST GERMANY 

zone decree/ ' however, which marked the be- 
ginning of the controversy with the United 
States, was of a much more sinister character. 
Late in 1914 Admiral Von Tirpitz said that 
the submarine would be used to sink merchant 
vessels in British waters, but the rules of inter- 
national law enumerating the exceptional cases 
in which prizes might be destroyed — the safety 
of passengers and crew always being an indis- 
pensable sine qua non — were so definite, and 
the considerations of humanity so potent, that 
such a procedure was almost unthinkable, and 
so not much attention was paid to the German 
admiral 's announcement. On February 4, 1915, 
however, there was issued the proclamation de- 
creeing the destruction of merchant vessels by 
submarines. It read as follows : 

"1. The waters surrounding Great Britain and 
Ireland including the whole English Channel are 
hereby declared to be war zone. On and after the 
18th of February, 1915, every enemy merchant ship 
found in the said war zone will be destroyed with- 
out its being always possible to avert the danger 
threatening the crews and passengers on that account. 

"2. Even neutral ships are exposed to danger in 
the war zone as in view of the misuse of neutral 



GERMANY'S SUBMARINE "BLOCKADE" 17 

flags ordered on January 31st by the British Govern- 
ment and of the accidents of naval war, it cannot 
always be avoided to strike even neutral ships in at- 
tacks that are directed at enemy ships. 

"3. Northward navigation around the Shetland Is- 
lands, in the eastern waters of the North Sea and in 
a strip of not less than 30 miles width along the 
Netherlands coast is in no danger." 

A memorial of the Imperial German Gov- 
ernment accompanying this proclamation 
frankly justified it as a retaliatory measure for 
Great Britain's interferences with German 
trade. Long afterward (March, 1916) the 
ground of defense was shifted and it was 
claimed that the use of the submarine against 
private vessels could not be illegal because, the 
weapon being a new one, there were no rules 
on the subject. But this obviously fallacious 
argument — to be considered more in detail later 
— was not advanced by the original German 
memorial. This alleged many violations of in- 
ternational law on the part of Great Britain: 
the repudiation of the Declaration of London; 
the extension of contraband lists ; the abandon- 
ment of the distinction between absolute and 



18 AMEKICA'S CASE AGAINST GEKMANY 

conditional contraband; the seizure of noncon- 
traband German goods on neutral vessels, and 
the declaration that the North Sea should be an 
area of war, 

"thereby rendering difficult and extremely danger- 
ous, if not impossible, all navigation on the high seas 
between Scotland and Norway, so that they have in 
a way established a blockade of neutral coasts and 
ports, which is contrary to the elementary princi- 
ples of generally accepted international law. Clearly 
all these measures are part of a plan to strike not 
only the German military operations, but also the 
economic system of Germany, and in the end to de- 
liver the whole German people to reduction by fam- 
ine, by intercepting legitimate neutral commerce by 
methods contrary to international law." 

Complaint was made that the powers not at 
war had acquiesced in the measures taken by 
Great Britain, and looked with indulgence on 
these violations of neutrality; that neutrals 
were satisfied with theoretical protests. 

"The time has come," the memorandum contin- 
ued, "for Germany also to invoke such vital interests. 
It therefore finds itself under the necessity, to its 
regret, of taking military measures against England 



GERMANY'S SUBMARINE "BLOCKADE" 19 

in retaliation of the practice followed by England. 
Just as England declared the whole North Sea be- 
tween Scotland and Norway to be comprised within 
the seat of war, so does Germany now declare the 
waters surrounding Great Britain and Ireland, in- 
cluding the whole English Channel, to be comprised 
within the seat of war, and will prevent by all the 
military means at its disposal all navigation by the 
enemy in those waters. To this end it will endeavor 
to destroy, after February 18 next, any merchant 
vessels of the enemy which present themselves at the 
seat of war above indicated, although it may not al- 
ways be possible to avert the dangers which may 
menace persons and merchandise. Neutral powers 
are accordingly forewarned not to continue to in- 
trust their crews, passengers, or merchandise to such 
vessels. Their attention is furthermore called to the 
fact that it is of urgency to recommend to their own 
vessels to steer clear of these waters. It is true that 
the German Navy has received instructions to ab- 
stain from all violence against neutral vessels recog- 
nizable as such; but in view of the hazards of war, 
and of the misuse of the neutral flag ordered by the 
British Government, it will not always be possible to 
prevent a neutral vessel from becoming the victim 
of an attack intended to be directed against a ves- 
sel of the enemy. . . . 

1 ' The German Government announces this measure 
at a time permitting enemy and neutral ships to make 



20 AMERICA'S CASE AGAINST GERMANY 

the necessary arrangements to reach the ports situ- 
ated at the seat of war. They hope that the neutral 
powers will accord consideration to the vital inter- 
ests of Germany equally with those of England, and 
will on their part assist in keeping their subjects and 
their goods far from the seat of war; the more so 
since they likewise have a great interest in seeing 
the termination at an early date of the war now 
ravaging. ' ' 

Against this announcement the United States, 
with other neutrals, protested very vigorously 
and there was sent to Germany the celebrated 
"strict accountabili ty" note of February 10, 
1915. The Government of the United States 
called attention to the serious possibilities of 
the course contemplated, and requested "the 
Imperial German Government to consider, be- 
fore action is taken, the critical situation in re- 
spect of the relations between this country and 
Germany which might arise were the German 
naval forces, in carrying out the policy fore- 
shadowed in the Admiralty's proclamation, to 
destroy any merchant vessel of the United 
States or cause the death of American citizens.' ' 

The sole right of a belligerent dealing with 
neutral vessels on the high seas, Germany was 



GERMANY'S SUBMARINE "BLOCKADE" 21 

reminded, is limited to visit and search, unless 
a blockade is proclaimed and made effective — a 
measure which the German proclamation did 
not propose — and 

"To declare or exercise a right to attack and de- 
stroy any vessel entering a prescribed area of the 
high seas without first certainly determining its bel- 
ligerent nationality and the contraband character 
of its cargo would be an act so unprecedented in 
naval warfare that this Government is reluctant to 
believe that the Imperial Government of Germany 
in this case contemplates it as possible. The suspi- 
cion that enemy ships are using neutral flags improp- 
erly can create no just presumption that all ships 
traversing a prescribed area are subject to the same 
suspicion. It is to determine exactly such questions 
that this Government understands the right of visit 
and search to have been recognized." 

Germany was told, further, that the Govern- 
ment of the United States could not be accused 
of acquiescence in the measures taken by Great 
Britain to restrain neutral trade; that, on the 
contrary, it had insisted upon the observance of 
the recognized principles of international law 
and was free to hold the Allied Governments 
responsible for damage to American shipping; 



22 AMERICA'S CASE AGAINST GERMANY 

and that it could take, with a clear conscience, 
the position indicated in this reply to the Ger- 
man proclamation. Therefore a solemn, and 
apparently definite and final warning was con- 
veyed to Germany in strong words which have 
been much quoted: 

"If the commanders of German vessels of war 
should act upon the presumption that the flag of the 
United States was not being used in good faith and 
should destroy on the high seas an American ves- 
sel or the lives of American citizens, it would be dif- 
ficult for the Government of the United States to 
view the act in any other light than as an indefensi- 
ble violation of neutral rights which it would be 
very hard indeed to reconcile with the friendly re- 
lations now so happily subsisting between the two 
Governments. 

"If such a deplorable situation should arise, the 
Imperial German Government can readily appreciate 
that the Government of the United States would be 
constrained to hold the Imperial German Govern- 
ment to a strict accountability for such acts of their 
naval authorities and to take any steps it might be 
necessary to take to safeguard American lives and 
property and to secure to American citizens the full 
enjoyment of their acknowledged rights on the high 
seas. 



GERMANY'S SUBMARINE "BLOCKADE" 23 

"The Government of the United States, in view of 
these considerations, which it urges with the greatest 
respect and with the sincere purpose of making sure 
that no misunderstanding may arise and no cir- 
cumstance occur that might even cloud the inter- 
course of the two Governments, expresses the confi- 
dent hope and expectation that the Imperial German 
Government can and will give assurance that Ameri- 
can citizens and their vessels will not be molested by 
the naval forces of Germany otherwise than by visit 
and search, though their vessels may be traversing 
the sea area delimited in the proclamation of the 
German Admiralty." 

This protest of the United States, it will be 
noticed, was based almost entirely on the prin- 
ciple that American vessels could not, by any 
such order, be kept out of the war zone and 
little attention was paid to the rights of Amer- 
ican citizens on belligerent vessels either as 
passengers or as members of the crew. As for 
the rights of American vessels, it may be 
pointed out here that, under the accepted prin- 
ciples of international law, vessels belonging to 
a neutral may not be captured and confiscated 
by a belligerent except when carrying a cargo 
more than half of which is contraband or when 



24 AMERICA'S CASE AGAINST GERMANY 

attempting to violate a blockade. Now, the 
fundamental principle of a blockade is that in 
order to be binding, that is, to make legal the 
confiscation of vessels attempting to pass, it 
must be effective. Since, during the first nine 
weeks after the German decree, according to the 
London Times, British ports had 11,635 arrivals 
and sailings, and of these only thirty-five steam- 
ers were sunk by submarines, it is obvious that 
the German measure was not binding and noth- 
ing more than a " paper blockade. " Hence, 
German submarines and cruisers had the right 
to capture a neutral vessel only on account of 
the contraband character of the cargo, and if 
the right of capture was thus restricted, the 
right of destruction was still further limited. 3 

To this communication Germany replied on 
February 16th in a long memorandum which 
reviewed at even greater length than the orig- 
inal memorial the basis of such a measure as 
that contemplated. The note was very polite 
and attempted to counteract the unfavorable 
impressions among neutrals which had been 

8 See the discussion of this right in the following chapter. 



GERMANY'S SUBMARINE "BLOCKADE" 25 

caused by the first memorandum. Germany, it 
was said, 

''is- to all intents and purposes cut off from oversea 
supplies with the toleration, tacit or protesting, of 
the neutrals regardless of whether it is a question 
of goods which are absolute contraband or only con- 
ditional contraband or not contraband at all, follow- 
ing the law generally recognized before the outbreak 
of the war. On the other hand England with the 
indulgence of neutral Governments is not only being 
provided with such goods as are not contraband or 
merely conditional contraband, namely, foodstuffs, 
raw material, et cetera, although these are treated 
by England when Germany is in question as absolute 
contraband, but also with goods which have been 
regularly and unquestionably acknowledged to be ab- 
solute contraband. The German Government believe 
that they are obliged to point out very particularly 
and with the greatest emphasis, that a trade in arms 
exists between American manufacturers and Ger- 
many's enemies which is estimated at many hundred 
million marks. 

"The German Government have given due recogni- 
tion to the fact that as a matter of form the exercise 
of rights and the toleration of wrong on the part of 
neutrals is limited by their pleasure alone and in- 
volves no formal breach of neutrality. The German 
Government have not in consequence made any charge 



26 AMERICA'S CASE AGAINST GERMANY 

of formal breach of neutrality. The German Gov- 
ernment cannot, however, do otherwise, especially in 
the interest of absolute clearness in the relations be- 
tween the two countries, than to emphasize that they, 
in common with the public opinion in Germany, feel 
themselves placed at a great disadvantage through 
;the fact that the neutral powers have hitherto achieved 
no success or only an unmeaning success in their 
assertion of the right to trade with Germany, ac- 
knowledged to be legitimate by international law, 
whereas they make unlimited use of their right to 
tolerate trade in contraband with England and our 
other enemies. Conceded that it is the formal right 
of neutrals not to protect their legitimate trade with 
Germany and even to allow themselves knowingly and 
willingly to be induced by England to restrict such 
trade, it is on the other hand not less their good 
right, although unfortunately not exercised, to stop 
trade in contraband, especially the trade in arms, 
with Germany's enemies." 

After six months of "patience and watchful 
waiting, ' ' Germany had been compelled to meet 
this " murderous method of conducting mari- 
time war with drastic counter measures,' ' and 
the note declared that 

''If England invokes the powers of famine as an 
ally in its struggle against Germany with the inten- 



GERMANY'S SUBMARINE "BLOCKADE" 27 

tion of leaving a civilized people the alternative of 
perishing in misery or submitting to the yoke of Eng- 
land 's political and commercial will, the German Gov- 
ernment are to-day determined to take up the gaunt- 
let and to appeal to the same grim ally. They rely 
on the neutrals who have hitherto tacitly or under 
protest submitted to the consequences, detrimental 
to themselves, of England's war of famine to dis- 
play not less tolerance toward Germany, even if the 
German measures constitute new forms of maritime 
war, as has hitherto been the case with the English 
measures. ' ' 4 

4 Complaint was made particularly that the American ship 
Wilhelmina, en route to Hamburg, had been seized although the 
"cargo was destined solely for the civil population of Germany 
and was to be used only for this purpose according to an ex- 
press declaration of the German Government. ' ' But in Janu- 
ary, 1915, the Federal Council of Germany decreed that after 
February 1st, grain and flour imported should be taken over 
by the Government. Foodstuffs are conditional contraband and 
are liable to seizure if they are destined for the armed forces. 
England therefore claimed that in view of this decree all food- 
stuffs shipped into Germany after February 1st would be liable 
to seizure, since it would be impossible to distinguish between 
what was intended for the civilian population and what for the 
Government. England 's action was not considered legal by the 
United States which protested. It should be said, however, that 
there was some justification as a measure of reprisal for a 
decision to consider food absolute contraband since the Dutch 
vessel Maria, with a cargo of grain for Ireland, was destroyed 
by the German cruiser Karlsruhe, in September, 1914, without 
ascertaining the destination of the grain. 

' ' The German Government can not have it both ways, ' ' said 



28 AMERICA'S CASE AGAINST GERMANY 

Nevertheless, in spite of the claim that the 
starvation policy was illegal and the assumption 
that, as "a matter of course" neutrals would 
not oppose the forcible suppression of the trade 
in contraband, the note went on to admit the 
justness of the American contention and said : 

"It is very far indeed from the intention of the 
German Government, acting in obedience to these 
compelling circumstances, ever to destroy neutral 
lives and neutral property, but on the other hand 
they cannot be blind to the fact that dangers arise 
through the action to be carried out against England 
which menace without discrimination all trade within 
the area of maritime war. This applies as a matter 
of course to war mines which place any ship ap- 
proaching a mined area in danger, even if the limits 
of international law are adhered to most strictly." 

a memorandum of the British Foreign Office. ' ' If they consider 
themselves justified in destroying by bombardment the lives and 
property of peaceful civil inhabitants of English open towns 
and watering places, and in seizing and sinking ships and 
cargoes of conditional contraband on the way thither, on the 
ground that they are consigned to a fortified place or base, 'a 
fortiori' His Majesty's Government must be at liberty to treat 
Hamburg, which is in part protected by the fortifications at the 
mouth of the Elbe, as a fortified town, and as a base of opera- 
tions and supply. ..." Germany, it may be added, destroyed 
the American ship William P. Frye, which was bound for Fal- 
mouth, Queenstown, or Plymouth with a cargo of wheat. But 
this incident is adverted to later. 



GEKMANY'S SUBMARINE "BLOCKADE" 29 

Hope was expressed that neutral shipping 
would shun the dangers of mines by staying 
away from the area of maritime war — this being 
the safest method of avoiding "unfortunate ac- 
cidents." It was asserted furthermore that 
the original announcement covered only enemy 
merchant vessels, not all merchant vessels : 

"This limitation which the German Government 
have imposed upon themselves impairs the military 
purpose, especially since the presumption will pre- 
vail, even in the case of neutral ships, that they have 
contraband on board, in view of the interpretation 
of the idea of contraband in which the English Gov- 
ernment have indulged as regards Germany and 
which the German Government will accordingly ap- 
ply against England. 

"Naturally the Imperial Government are not will- 
ing to waive the right to establish the presence of 
contraband in the cargoes of neutral ships and, in 
cases requiring it, to take any action necessary on 
the grounds established. Finally the German Gov- 
ernment are prepared to accord, in conjunction with 
the American Government, the most earnest consid- 
eration to any measure that might be calculated to 
insure the safety of legitimate shipping of neutrals 
within the seat of war." 



30 AMERICA'S CASE AGAINST GERMANY 

Efforts in this direction, however, were ham- 
pered by the " misuse' ' of the neutral flag on 
English vessels and by the carriage of abso- 
lute contraband in neutral bottoms. As for 
the latter, the note expressed the hope "that the 
American Government upon reconsideration 
will see their way clear to a measure of inter- 
vention in accordance with the spirit of true 
neutrality. ' ' As for the first, German efforts 
would be without avail if neutral vessels were 
not marked in a manner admitting of no doubt ; 
and the protest to England against the use of 
the American flag was welcomed. 5 The sugges- 
tion was made that the United States provide a 
convoy for American vessels carrying no con- 
traband; but the note again promised future 
gratitude on the part of the German Govern- 
ment if — and this of course would be just as 
satisfactory as the right to take unrestricted 
measures against neutral shipping — ' ' the Amer- 
ican Government would urgently advise their 

5 In the expectation that England would not use the American 
flag, ' ' the commanders of the German submarines have been in- 
structed, as was already stated in the note of fourth instant, 
to abstain from violence to American merchant vessels "when 
they are recognizable as such." 



GERMANY'S SUBMARINE "BLOCKADE" 31 

merchant vessels to avoid the English seat of 
maritime war, at any rate until the flag question 
is settled." 6 

Germany had thrown out the hint, in this note, 
that if the Allies could be persuaded to adhere 
to the Declaration of London, she might with- 
draw her submarine and war zone order and it 
is likely that at any time during the war she 
would have been willing to make this concession 
if permitted to import foodstuffs, and if the 
trade in munitions between the United States 
and the Allies had ceased. Accordingly Secre- 
tary of State Bryan sent, on February 20th, 
identic communications to Great Britain and 
Germany asking for mutual concessions so that 
an international modus operandi might be 
achieved which would not be fraught with such 

* This note complained that ' ' the British Government have 
armed English merchant vessels and instructed them to resist 
by force the German submarines. In these circumstances it is 
very difficult for the German submarines to recognize neutral 
merchant vessels as such, for even a search will not be possible 
in the majority of cases, since the attacks to be anticipated in 
the case of a disguised English ship would expose the com- 
manders conducting a search and the boat itself to the danger 
of destruction, ' ' but no particular stress was laid upon this 
point. The questions of international law will receive consid- 
eration later. 



32 AMERICA'S CASE AGAINST GERMANY 

a menace to neutrals. The United States would 
not surrender any rights, but modified practices 
on the part of the belligerents were asked to 
safeguard these rights. 

Great Britain and Germany were asked to 
agree (1) not to sow any floating mines except 
within common range of harbors for defensive 
purposes; (2) not to use submarines to attack 
merchant vessels, belligerent or neutral, except 
to enforce the right of visit and search; and 
(3) not to use neutral flags as a ruse de guerre. 
Germany on her part was asked to permit all 
importations of food to be consigned to agencies 
designated by the United States, and to give 
assurances that the food would not be requisi- 
tioned or diverted for the armed forces, but 
would be distributed solely to retailers whose 
licenses would permit them to furnish to non- 
combatants only. The concession asked from 
Great Britain was that food would not be placed 
upon the list of absolute contraband, and that 
shipments to these designated agencies would 
not be interfered with. It was made clear that 
the United States, in this, the first of its pro- 
posals to secure mutual concessions from the 



GERMANY'S SUBMARINE "BLOCKADE" 33 

belligerents to safeguard American interests 
and change conditions which caused infringe- 
ment of American rights, was not admitting or 
denying "any belligerent or neutral right es- 
tablished by the principles of international 
law." 

The reply of Germany to the American pro- 
posals was made on February 28th. It agreed 
that unanchored mines should not be used, but 
declined to forego the employment of mines for 
offensive purposes. As for the use of subma- 
rines against merchant vessels, the American 
suggestion was accepted but the acquiescence 
was immediately negatived, as will be found to 
be the case in a great many of the German com- 
munications, by a truly remarkable statement: 
1 ' It would appear to be a matter of course that 
such mercantile also abstain from arming them- 
selves and from all resistance by force, since 
such procedure contrary to international law 
would render impossible any action of the sub- 
marines in accordance with international law J 9 

These words which I have italicized would 
seem to admit absolutely the American conten- 
tion that it was illegal to sink merchant vessels 



34 AMERICA'S CASE AGAINST GERMANY 

without warning. But the United States appar- 
ently took no advantage of the admission thus 
made. Furthermore, Germany professed her- 
self willing to accept the expedient of having 
agencies designated by the United States to 
receive imports of food stuffs, but "the enemy 
Governments would have to permit the free 
entry into Germany of the raw material men- 
tioned in the free list of the Declaration of 
London and to treat materials included in the 
list of conditional contraband according to the 
same principles as food and foodstuff s." This, 
of course, did not begin to meet the American 
proposal and was calculated to force a relaxa- 
tion of the British measures to intercept Ger- 
many's trade. One cannot but marvel again at 
the ineptness of the German diplomacy. Surely 
half a loaf was better than none. The damage 
done by the use of mines for offensive purposes 
and submarines for attacks on merchant vessels 
was for months negligible ; and full compliance 
with the suggestion concerning food stuffs 
would have served somewhat to conciliate 
American opinion and could have forced the 
United States to protest much more vigorously 



GERMANY'S SUBMARINE "BLOCKADE" 35 

against Great Britain's disregard of the princi- 
ples of the Declaration of London. Instead, 
there came what was practically an invitation 
that the Allies in their turn refuse the sugges- 
tions, but the note did not fail to point out 
again that the hardships on neutrals would be 
lessened if "some way could be found to ex- 
clude the shipping of munitions of war from 
neutral countries to belligerents on ships of any 
nationality. ' ' 7 

As I have already said, the German reply was 
such as to demand a refusal on the part of Great 
Britain and this came on March 13th. The op- 
portunity was taken, however, for a statement 
regarding the position of the Allies. Attention 
was called to the treatment by Germany of civil- 

7 The misrepresentation of the German reply as an ac- 
ceptance of the American proposals has not been confined to 
Ambassador Bernstorff and the German Foreign OfBce. In 
the Senatorial debate on the War Resolution, for example, 
Senator La Follette said: "Without quoting at length the 
replies of the Governments of Germany and Great Britain, it 
is sufficient to say that under date of March 1, 1915 [the com- 
munication bears the date of February 28th], the German 
Government replied substantially acceding to the proposition 
made by the Government of the United States, and on March 
15 [March 13th] the British Government replied substantially 
refusing to accede to our request. ' ' Congressional Becord, 65th 
Cong., 1st Sess., p. 300 (April 4, 1917). See below, p. 74 n. 



36 AMERICA'S CASE AGAINST GERMANY 

ians in Belgium and the North of France ; to in- 
humanities with regard to prisoners ; the laying 
of mines on the high seas ; the destruction, with- 
out warning, of British merchant vessels; the 
naval bombardment of unfortified towns, and 
the dropping of bombs on the east coast of Eng- 
land, where there were no strategic points to 
be attacked. Only two criticisms, on the other 
hand, had been made concerning British action. 
It was true that mines had been laid, but they 
became harmless when adrift and had not been 
resorted to until weeks after the discovery of 
the German practice. 

As for the stoppage of foodstuffs the points 
of international law were not arcued, but this 
important consideration was adverted to: 

"Inasmuch as the stoppage of all foodstuffs is an 
admitted consequence of blockade, it is obvious that 
there can be no universal rule based on considera- 
tions of morality and humanity, which is contrary to 
this practice. The right to stop foodstuffs destined 
for the civil population must, therefore, in any case 
be admitted if an effective 'cordon' controlling inter- 
course with the enemy is drawn, announced, and 
maintained. Moreover, independently of rights aris- 
ing from belligerent action in the nature of blockade, 



GERMANY'S SUBMARINE "BLOCKADE" 37 

some other nations, differing from the opinion of 
the Governments of the United States and Great 
Britain, have held that to stop the food of the civil 
population is a natural and legitimate method of 
bringing pressure to bear on an enemy country, as it 
is upon the defense of a besieged town." 

Prince Bismarck and Count Caprivi were 
quoted to show that such a measure " presum- 
ably is not repugnant to German morality." 
The latter said, for example, in the German 
Keichstag that ' ' the private introduction of pro- 
visions into Paris was prohibited during the 
siege, and in the same way a nation would be 
justified in preventing the import of food and 
raw produce.' ' And the practice of the Union 
during the American Civil War could also be 
cited to witness the weakness of the German 
complaint. 

The British object, finally, would be attained 
without 

"sacrificing neutral ships or noncombatant lives, or 
inflicting upon neutrals the damage that must be en- 
tailed when a vessel and its cargo are sunk without 
notice, examination, or trial. 

"I must emphasize again that this measure is a 



38 AMERICA'S CASE AGAINST GERMANY 

natural and necessary consequence of the unprece- 
dented methods, repugnant to all law and morality, 
which have been described above, which Germany 
began to adopt at the very outset of the war, and 
the effects of which have been constantly accumu- 
lating/ J 



Thus ended the preliminary exchanges be- 
tween the United States and Germany. Subma- 
rines were already being used against merchant 
vessels ;. noncombatants were losing their lives ; 
the measure was, by German admission, in vio- 
lation of the existing rules of law, although she 
claimed that it was justified to meet the meas- 
ures of her enemies, and asked that neutrals 
relinquish their rights in order not to suffer; 
but no American citizens were killed, and the 
United States refrained from entering any fur- 
ther protest on humanitarian grounds. Ger- 
many had been told that she would be held to a 
"strict accountability, ' ' and she had answered 
that she would endeavor to respect neutral 
rights, but that with the trade in munitions con- 
tinuing, she would not be responsible for any 
unfortunate accidents. It was now a question 



GERMANY'S SUBMARINE "BLOCKADE" 39 

of how soon American rights would be directly 
infringed. 8 

8 Before March 10, 1915, eighty-eight British merchant ves- 
sels were captured or destroyed. Fifty-four of these were 
taken by cruisers, twelve were sunk by mines, and twenty-two 
were victims of the submarine warfare. The gross tonnage was 
309,945. This, however, did not begin to affect England seri- 
ously for in the same period the arrivals and departures of over- 
seas steamers of all nationalities of more than 300 tons were 
4,745. The New York Times Current History, Vol. II, p. 20 
(April, 1915). 



CHAPTER III 

SOME POINTS OF INTEKNATIONAL LAW 

It has already been indicated briefly how Ger- 
many 's submarine warfare did not achieve even 
a remote compliance with the principles of in- 
ternational law defining a blockade, and that, 
therefore, neutral vessels could be captured 
only for the carriage of contraband. The Ger- 
man plea that any war measure, with the pur- 
pose of starving her into submission was per se 
illegal has been mentioned. This will be re- 
turned to later when it will be necessary to 
consider in some detail the objections to the 
trade in munitions and the attempt to justify 
the submarine outrages on the ground that 
they were a proper retaliation for England's 
extensions of international law. But here it 
may be appropriate to direct attention to three 
problems of international law which were in- 

40 



POINTS OF INTERNATIONAL LAW 41 

volved by these preliminary exchanges: The 
status of the Declaration of London, the limita- 
tions (which are of fundamental importance) 
on the right to destroy enemy and neutral mer- 
chant vessels, and the use of neutral flags on 
enemy ships. 

The purpose of the Declaration of London, 
which was signed by ten powers (Germany, 
Austria- Hungary, Spain, France, Great Britain, 
the United States, Italy, Japan, the Netherlands 
and Eussia) was twofold: It was designed in 
the first place to furnish the rules to govern 
the International Prize Court — provided for by 
the Second Hague Peace Conference but never 
brought into existence — in determining appeals 
from national prize courts in time of war ; and 
secondly, it was intended to codify the rules of 
maritime warfare, the assumption being that the 
approval of these ten powers would lead to 
its acceptance by the other nations. To some 
extent this hope was not unjustified since, al- 
though neither state had ratified the instrument, 
it was proclaimed as the rule of conduct during 
the Italian-Turkish war ; but in the present con- 



42 AMERICA'S CASE AGAINST GERMANY 

flict it has been more honored in the breach than 
in the observance. 

Although the London Naval Conference was 
called by Great Britain, which extended the in- 
vitation to the other nine maritime powers, a 
prize bill, incorporating the provisions of the 
Declaration was rejected by the House of Lords 
after it had passed the Commons (1911). Pub- 
lic opinion in Great Britain was unfavorable to 
it — particularly those provisions dealing with 
contraband. The United States Senate, how- 
ever, ratified the Declaration and both Germany 
and France incorporated it in their naval codes. 
Upon the outbreak of the present war, the 
United States inquired of all the belligerents as 
to whether they would agree that the Declara- 
tion should be applicable upon condition of reci- 
procity, and expressed the belief "that an ac- 
ceptance of the laws by the belligerents would 
prevent grave misunderstandings which may 
arise as to the relations between neutral powers 
and belligerents. ' ' Germany and Austria-Hun- 
gary expressed their willingness, but Great 
Britain refused to abide by a number of provi- 
sions, the most important being those which de- 



POINTS OF INTERNATIONAL LAW 43 

fined contraband and limited the doctrine of 
continuous voyage to absolute contraband. Con- 
sequently, on October 22nd, the United States 
notified all the belligerents that the sugggestion 
was withdrawn and expressed the intention of 
the Government to "insist that the rights and 
duties of the United States and its citizens in 
the present war be defined by the existing rules 
of international law and the treaties of the 
United States irrespective of the Declaration of 
London." Actions of the belligerents, there- 
fore, could not be deemed illegal simply because 
they traversed the provisions of the Declaration 
of London. 

The importance which Germany attached to 
the refusal of England to abide by the Declara- 
tion of London may be attributed to two of the 
English war measures which the Declaration 
forbade. In the first place, England at once 
exercised the right which every belligerent in 
previous wars had asserted — to make up her 
own lists of absolute and conditional contra- 
band — and as is the case each time, the measure 
favored her own rights at the expense of the 
interests of opponents and neutrals. There was 



44 AMERICA'S CASE AGAINST GERMANY 

nothing illegal about this, 1 and although she put 
on her list articles which the London Declara- 
tion declared not to be contraband, she violated 
no international rule since the Declaration of 
London is not binding. Furthermore, as has 
already been indicated, there is a distinction be- 
tween kinds of contraband, the classic division 
being threefold: (1) articles primarily used 
for military purposes in time of war; (2) ar- 
ticles of use for warlike or peaceful purposes, 
and (3) articles of no utility except for pur- 
poses of peace. If consigned to the belligerent 
country, articles of absolute contraband are 
considered as meant for the enemy forces, while 
articles of conditional contraband are liable to 
capture if intended for the armed forces, and 
this can be shown by their consignment to 
agents of the government or to naval and mili- 
tary stations. In two respects changed cir- 
cumstances have made this distinction largely 
illusory : easy means of transportation by which 
articles landed at an unfortified port, some dis- 
tance from the military forces, can be speedily 

1 Articles 23 and 25 of the Declaration expressly recognized 
the right to extend the lists of both kinds of contraband. 



POINTS OF INTERNATIONAL LAW 45 

devoted to war-like purposes, and, secondly, the 
organization of a country — such as was effected 
by the decree of the German Bundesrath — so 
that all food supplies and available resources 
are under the control of the Government and 
no distinction can be made between the peace- 
ful and war-like purposes of imported articles. 
The British Orders in Council, in addition 
to extending lists of contraband, ignored the 
distinction between the two kinds. But, more 
than that, they applied the doctrine of continu- 
ous voyage to shipments of conditional contra- 
band. The Anglo-American practice, largely in- 
corporated in the Declaration of London, per- 
mits the capture of absolute contraband of war, 
when destined for a neutral port if the ultimate 
destination of the cargo is a belligerent coun- 
try. But this doctrine of continuous voyage, 
first applied in the French courts during the 
Crimean War, much extended, as is well known 
— and as England reminded us with her later 
consent — during the American Civil War, and 
used by Great Britain during the Boer War, 
relates only to absolute contraband and accord- 
ing to the Declaration of London may not apply 



46 AMERICA'S CASE AGAINST GERMANY 

to shipments of conditional contraband. This 
distinction also, Great Britain made largely il- 
lusory, directly through the interference with 
articles of conditional contraband consigned to 
neutrals, and indirectly through the extension 
of the absolute contraband lists. The power of 
the British navy was used practically to li- 
cense commerce between the United States and 
neutrals like the Netherlands, Norway, Sweden, 
and Denmark, and in order to continue to trade 
with America these countries were compelled to 
prohibit the export of articles which Great Brit- 
ain would not allow to be imported with the 
possibility that they might find their way into 
the territory of her enemies. 

This rather summary statement, explains, I 
think, the nature of the first British extensions 
of international law which Germany claimed 
gave her license to retaliate by submarine war- 
fare. The extensions were forbidden by the. 
Declaration of London, and strict adherence to 
this instrument would have been greatly to the 
advantage of Germany, since she could have had 
more direct trade with the United States and 



POINTS OF INTERNATIONAL LAW 47 

could have imported commodities of American 
origin from the adjacent nentral countries. But 
since, unratified as it was, the Declaration of 
London was not binding, it had no sacrosanct 
character, and the importance given it in the 
German communications should be taken as at- 
taching to the recognized principles of interna- 
tional law which the Declaration sought to, and 
in large part did, codify. 

The German war zone decree asserted the 
right to destroy all enemy merchant ships found 
in the restricted area, and the sinking of neu- 
tral vessels, the intimation was given, might 
in some cases be unavoidable. It becomes per- 
tinent to inquire, therefore, as to the right of 
destruction of enemy and neutral vessels by a 
belligerent power as defined by undisputed rules 
of international law. 

It is not likely that the proclamation was in- 
tended to include all enemy ships, for at the 
Second Hague Peace Conference the powers 
agreed to a Convention (Number XI) limiting 
the right of capture in maritime warfare and 



48 AMEKICA'S CASE AGAINST GERMANY 

exempting "vessels charged with religious, sci- 
entific, or philanthropic missions, ' ' and ' ' vessels 
used exclusively for fishing along the coast or 
small boats employed in local trade ' ' so long as 
they take no part in hostilities. Hospital ships 
were also exempted by the Geneva Conventions, 
and if international law prohibits capture, de- 
struction is obviously illegal. While there have 
been instances in the present war of the destruc- 
tion by German submarines of vessels thus ex- 
empted, it is more pleasant to assume that their 
initial threat meant to make these exceptions. 2 
In other cases, however, the right to destroy 
enemy prizes is admitted, although it is equally 
well recognized that, if possible, they should be 
brought into a prize court to have the legality of 
the capture determined. Some authorities have 
disapproved of the practice as barbarous; the 
German publicists Bluntschli and HefTter ad- 
mitted it only in cases of absolute necessity, and 
Perels denied it until the prize court had de- 
termined the right of ownership. In recent 
wars the practice has been indulged in and its 

"When submarine depredations began under the decree of 
January 31, 1917, no exceptions were made. See above, p. 9. 



POINTS OF INTEKNATIONAL LAW 49 

legality seems to be beyond doubt, 3 but it is 
subject to a fundamental limitation : the destruc- 
tion cannot take place unless the safety of the 
passengers and crew is assured. An able au- 
thority — Professor James W. Garner — who has 
made an exhaustive investigation of the litera- 
ture on the subject, asserts that no interna- 
tional law authority, admiralty court, or gov- 
ernment (through prize regulations) has ever 
asserted a " right to destroy merchant vessels 
under any and all circumstances and subject to 
no restrictions. The universal opinion is that 
destruction is permissible only in certain ex- 
ceptional cases and .always subject to the ob- 
servance of certain rules by the captor." 4 In 
every case the persons on board must be saved 
together with their baggage. The various Prize 
Codes — even that of the Imperial German Gov- 
ernment — recognize this fundamental limita- 
tion. 

In addition, the Prize Codes do not recognize 

3 In the Spanish American War three Spanish merchant ships 
were sunk by an American cruiser but the United States claimed 
that the vessels were transports. 

4 Garner, ' ' International Law in the European War : War 
Zones and Submarine Warfare," American Journal of Inter- 
national Law, Vol. IX, pp. 594, 616. 



50 AMERICA'S CASE AGAINST GERMANY 

an otherwise unlimited right of destruction. 
The American regulations permit it if there are 
controlling reasons why the prize may not be 
sent in for adjudication such as " unseaworthi- 
ness, the existence of infectious diseases, or the 
lack of a prize crew" or "imminent danger of 
recapture.' ' The British code is similar, but 
both stipulate that the ship's crew and papers 
are to be removed ; and where the obligation to 
safeguard the lives of noncombatants is not ex- 
pressly affirmed, it is understood. Further- 
more, there are two international agreements on 
the subject. 

The Convention (Number VI) adopted at the 
Second Hague Conference to define the status 
of enemy merchant ships at the outbreak of hos- 
tilities declares that vessels on the high seas 
in ignorance of the outbreak of hostilities can- 
not be confiscated, but they are liable to deten- 
tion, requisition, or even destruction, upon pay- 
ment of compensation, "but in such cases pro- 
vision must be made for the safety of the per- 
sons on board as well as the security of the 
ship 's papers, ' ' and the specific statement of the 
rule in this instance is simply an affirmation of 



POINTS OF INTERNATIONAL LAW 51 

the general doctrine. Again, the Convention 
(Number XI) restricting the right of capture 
provides that when an enemy merchant ship is 
taken by a belligerent the neutrals in the crew 
cannot be made prisoners of war, and the same 
rule applies if the nationals of the enemy state 
make a formal promise, in writing, "not to un- 
dertake, while hostilities last, any service con- 
nected with the operations of the war." This, 
it hardly need be said, definitely negatives the 
right to take noncombatant lives. Finally, at 
the Second Hague Conference the American 
delegation pointed out that there were not ade- 
quate facilities on warships to care for persons 
taken from vessels that had been destroyed, and 
that apart from this such persons would be ex- 
posed to the dangers of naval battles. This was 
urged against the right of destruction, but, "In 
all the discussions on the subject, it was as- 
sumed that the right of destruction was condi- 
tioned upon the obligation of the captor to pro- 
vide for the safety of the crews and passengers, 
and never once was it intimated that inability 
to make such provision constituted a sufficient 



52 AMERICA'S CASE AGAINST GERMANY 

defense against disregard of the obligation. ' ' 5 
It is, then, to repeat, not the destruction of en- 
emy prizes which is unlawful, and although this 
might, contrary to previous practice, be illegally 
done in every case by the submarines, there 
would be nothing wanton or uncivilized about 
it; the failure to regard the sacred immunities 
of noncombatants is what condemns the German 
methods. 

So far as neutral prizes are concerned, the 
same principles apply, although much more rig- 
orously. Up until the 19th century, there were 
no instances of the destruction of neutral ves- 
sels, and the first exercise of the right other 
than sporadically was during the Eusso-Japan- 
ese War. This was authorized by the Russian 
prize code in exceptional cases only, however, 
after the commander "has taken off all persons 
on board, and as much of the cargo as possible, 
and arranged for the safety of the vessel's pa- 
pers and any other objects which may be neces- 
sary for throwing light on the case at the in- 
quiry to be instituted in accordance with the 
procedure in prize cases.' ' No distinction was 

6 Garner, op. cit., p. 626. 



POINTS OF INTERNATIONAL LAW 53 

made between enemy and nentral vessels, but 
after Great Britain protested, the Eussian regu- 
lations were modified so as to permit the de- 
struction of the latter only in the "direst ne- 
cessity." 

The naval codes of a number of other mari- 
time powers admitted the destruction in very 
exceptional cases of ships which were liable to 
condemnation (for carrying contraband, breach 
of blockade, etc.), and upon this question an 
agreement was reached in the Declaration of 
London, which allowed destruction in cases of 
"exceptional necessity" — if taking the vessel 
into port ' ' would involve danger to the safety of 
the warship or to the success of the operations 
in which she is engaged at the time ' ' ; but before 
the vessel may be destroyed "all persons on 
board must be placed in safety and all the ship's 
papers and other documents which the parties 
interested consider relevant for the purpose of 
deciding on the validity of the capture must be 
taken on board the warship" (Articles 49 and 
50). 

This was apparently satisfactory to Germany 



54 AMERICA'S CASE AGAINST GERMANY 

as her delegates signed the Declaration and 
she professed herself willing to accede to it at 
the beginning of the war. In fact, a German 
memorandum on the subject, presented to the 
Conference, was identical with the article as 
finally agreed upon, and the German Prize Code 
of 1909, published on August 3, 1914, recog- 
nized the right of destruction with terms but 
little broader than those of the Declaration of 
London. 6 In short, this maritime war measure, 
of recent origin, of legality that has been denied 
by authoritative writers and important states, is 
not unlimited ; but there is universal agreement 
that the lives of those on board must be safe- 
guarded, whether enemy or belligerent. 

Official notice was taken by the United States 
of the German complaint that the British Gov- 
ernment had authorized the use of the neutral 
flag as a, ruse de guerre, the particular incident 
cited being the action of the captain of the Lusi- 
tania in raising the American flag as the vessel 

•Secretary Lansing's Lusitania note of June 9th reminded 
the Imperial Government of the code which had been issued 
providing that *' before destruction all persons on board, if 
possible with their personal effects, are to be placed in safety. ' ' 



POINTS OF INTERNATIONAL LAW 55 

approached the British coast in order to escape 
an attack by a German submarine. 7 

Secretary Bryan reserved the question of le- 
gality, and while admitting the propriety of 
the occasional use of the flag in order to deceive 
an approaching enemy, objected to the "explicit 
sanction by a belligerent government for its 
merchant ships generally to fly the flag of a 
neutral power within certain portions of the 
high seas which are presumed to be frequented 
with hostile warships.' ' This, he continued, 
"jeopardizes the vessels of the neutrals vis- 
iting those waters in a peculiar degree by rais- 
ing the presumption that they are of belliger- 
ent nationality regardless of the flag which they 
may carry. ... 

"A policy such as the one which his Maj- 

7 On February 7th the British Foreign Office issued a memo- 
randum in which it was said that the use of a neutral flag is, 
with certain limitations, established as a valid ruse de guerre. 
"The only effect in the case of a merchantman of wearing a 
flag other than her national flag is to compel the enemy to fol- 
low the ordinary obligations of naval warfare, and to satisfy 
himself as to the nationality of the vessel and the character of 
the cargo by examination before capturing her and taking her 
into a Prize Court for adjudication . . . No breach of interna- 
tional law is thereby committed." There were, furthermore, 
several instances in the early days of the war of the use by 
German vessels of neutral flags. 



56 AMEEICA'S CASE AGAINST GERMANY 

esty's Government is said to intend to adopt, 
would, if the declaration of the German Admi- 
ralty is put in force, it seems clear, afford no 
protection to British vessels, while it would 
be a serious and constant menace to the lives 
and vessels of American citizens.' ' A failure 
to comply with this request would " impose 
upon the Government of Great Britain a meas- 
ure of responsibility for the loss of American 
lives and vessels in case of an attack by a Ger- 
man naval force. ' ' 8 

The practice of using the neutral flag was 
formerly quite common, and warships are per- 
mitted to assume colors other than their own, 
so long as they raise their true flags before 
going into action. Great Britain's reply, made 
on February 19th, said that the British shipping 
act permitted the use of the British flag by 
foreign merchant vessels for the purpose of es- 
caping capture ; that other nations had similar 
legislation; that Union merchant ships during 
the American Civil War had availed themselves 

8 This protest (February 10th) is an additional indication 
that the American ''strict accountability" note of the same 
day was more concerned with the safety of American vessels 
than with the safety of American citizens on enemy vessels. 



POINTS OF INTEENATIONAL LAW 57 

of this privilege, and that it would be unreason- 
able to expect the British Government to enact 
legislation forbidding the use of foreign flags 
by her vessels. In the case of the Lusitania 
American passengers had requested that the 
flag be raised and this was done without any 
advice from the Government. The communica- 
tion then proceeded to state correctly certain 
fundamental principles of international law: 

"Now that the German Government have an- 
nounced their intention to sink merchant vessels at 
sight, with their noncombatant crews, cargoes, and 
papers, a proceeding hitherto regarded by the opinion 
of the world not as war, but as piracy, it is felt that 
the United States Government could not fairly ask 
the British Government to order British merchant 
vessels to forego the means — always hitherto permit- 
ted — of escaping not only capture but the much worse 
fate of sinking and destruction. . . . 

"The obligation upon a belligerent warship to as- 
certain definitely for itself the nationality and char- 
acter of a merchant vessel before capturing it, and 
a fortiori before sinking and destroying it, has been 
universally recognized. If that obligation is ful- 
filled, hoisting a neutral flag on board a British ves- 
sel can not possibly endanger neutral shipping; and 
the British Government hold that if loss to neutrals 



58 AMERICA'S CASE AGAINST GERMANY 

is caused by disregard of this obligation, it is upon 
the enemy vessel disregarding it and upon the Gov- 
ernment giving orders that it should be disregarded 
that the sole responsibility for injury to neutrals 
ought to rest." 

This is a perfectly accurate statement of the 
recognized international rules. If the flag of 
the United States was never used as a ruse de 
guerre, American interests could not be in- 
volved, through "an unfortunate mistake' ' by 
the submarine warfare. But the rules, not only 
of international law but also of humanity, put 
war vessels under an obligation to examine a 
merchant ship before capturing it, and in case 
exceptional circumstances justify its destruc- 
tion, to put the passengers and crew in places of 
safety before this may be done. Germany has 
no right to sink an English merchant vessel 
without warning and without safeguarding the 
lives of noncombatants, and one cannot, there- 
fore, reach any conclusion other than that the 
abandonment by British ships of the use of the 
American flag would make it possible for Ger- 
many to violate international law with im- 
punity, so far as American interests were con- 



POINTS OF INTERNATIONAL LAW 59 

cerned, except in cases where American prop- 
erty or citizens were on board of the British 
ship. And if British insistence npon the right 
to use the American flag would contribute to 
compelling the submarine to make an examina- 
tion and to take care of the passengers and crew 
in order not to affect neutrals, then it was jus- 
tified on this basis, apart from its legality. 
The ground of the German protest, to repeat, 
was that the submarines should be permitted to 
violate international law with reduced chances 
of affecting the United States ; and the ground 
of the American protest was that by the relin- 
quishment on the part of British ships of 
the use of the American flag the chances of 
American interests being affected would be 
more remote. 



CHAPTER IV 



Amekican rights were first infringed on 
March 28th when the British steamer Falaba 
was sunk by a German submarine and an 
American citizen — Leon C. Thrasher — was 
drowned. Just a month later, the American 
ship Gushing was attacked by a German aero- 
plane, but no loss of life was occasioned. On 
May 1st, however, the American vessel Gulf- 
light was torpedoed by a submarine and three 
American citizens met their death. Finally, on 
May 7th, the Lusitania was sunk without warn- 
ing, and more than one thousand innocent men, 
women and children were killed, more than one 
hundred of them being American citizens. 

The United States and Germany had already 
had some correspondence over the sinking, on 
January 27th, of the American ship William P. 
Frye by the German auxiliary cruiser Prim 

60 



THE "LUSITANIA"— OTHER OUTRAGES 61 

Eitel Frederick. A bill, claiming the value of 
the ship and some compensation for damages 
occasioned by its sinking (the personal effects 
of the captain, etc.), was presented on April 3d 
and Germany very promptly replied (April 
4th) assuming liability for the claim. I have 
referred above to her interesting but inconsist- 
ent attitude in justifying the destruction of this 
vessel with a cargo of wheat on practically the 
same grounds as those taken by Great Britain 
in claiming the right to detain foodstuffs going 
into Germany. But the phases of the case per- 
tinent here are that Germany asserted that 
since the auxiliary cruiser was unable to take 
the vessel into port, the sinking was justified 
under the Declaration of London, and in accord- 
ance with the German Prize Code and Article 
50 of that instrument, "the duties devolving 
upon the cruiser before the destruction of the 
ship," as to the safety of the persons on board 
and the ship's papers were fulfilled. In the 
second place, Germany admitted that she was 
liable for damages under Article 13 of the Prus- 
sian-American treaty of friendship and com- 
merce of July 11, 1799, taken in connection with 



62 AMERICA'S CASE AGAINST GERMANY 

Article 12 of the Prussian- American treaty of 
commerce and navigation of May 1, 1828. 

These stipulations, which were called to the 
attention of the United States by Germany, are 
very remarkable. The treaty of 1828 revived 
certain clauses in the treaties of 1785 and 1799 
which provided that American citizens may 
trade with Germany's enemies "as in full 
peace' ' and this would seem to estop Germany 
from protesting against the trade in munitions. 
Under the treaties, no articles in American ves- 
sels "shall be deemed contraband, so as to in- 
duce confiscation or condemnation and a loss of 
property to individuals.' ' Nevertheless, Ger- 
many has the right to detain such vessels, sub- 
ject to a reasonable compensation for loss to 
the proprietors, and is allowed to use the mili- 
tary stores upon payment of compensation. 
"But in the case supposed of a vessel stopped 
for articles of contraband, if the master of the 
vessel stopped will deliver out the goods sup- 
posed to be of contraband nature, he shall be 
admitted to do it, and the vessel shall not in 
that case be carried into any port, nor further 
detained, but shall be allowed to proceed on her 



THE "LUSITANIA"— OTHER OUTRAGES 63 

voyage. ' ' Two points of controversy arose : as 
to the manner of settling the amount of dam- 
ages and as to the nature of Germany's lia- 
bility. 

The United States, in view of the fact that 
the treaty was involved, objected to adjudica- 
tion by a German prize court but insisted on 
arbitration, and Germany agreed to this in 
principle. The other important difference was 
that the United States claimed that the sink- 
ing of the Frye violated the treaty, but Ger- 
many asserted that under the treaty the sink- 
ing was justified subject to the payment of 
compensation. In either event, however, the 
treaty provisions are applicable to submarine 
warfare and give the United States a claim 
for damages even in those cases where the de- 
struction of a neutral prize would be justified 
by the Declaration of London. Whether the 
treaty permits destruction or simply imposes 
liability, it does prohibit any indiscriminate 
warfare which would be directed against 
American vessels, and more than that, it ex- 
pressly denies the legality of sinking without 



64 AMERICA'S CASE AGAINST GERMANY 

saving the noncombatants on board, for Ar- 
ticle 15 provides: 

"And to prevent entirely all disorder and vio- 
lence in such cases, it is stipulated that when the ves- 
sels of the neutral party, sailing without convoy, shall 
be met by any vessel of war, public or private, of the 
other party, such vessel of war shall not send more 
than two or three men in their boat on board the 
said neutral vessel, to examine her passports and 
documents. And all persons belonging to any vessel 
of war, public or private, who shall molest or insult 
in any manner whatever the people, vessels, or ef- 
fects of the other party, shall be responsible in their 
persons and property, for damages and interest, suf- 
ficient security for which shall be given by all com- 
manders of private armed vessels before they are 
commissioned. ' ' 

America's case against the use of submarines 
by Germany, however, was rested upon general 
principles of international law and the dictates 
of humanity, and in the correspondence these 
treaties are not stressed. But it may be re- 
marked here that a submarine " blockade' ' ap- 
plying to American ships cannot but violate 
these old instruments the binding character of 
which Germany admitted on her own initiative. 



THE "LUSITANIA"— OTHBB OUTKAGES 65 

After the sinking of the Lusitania and before 
an American protest could be made, two com- 
munications were received from Germany. 
The first expressed "deepest sympathy at the 
loss of lives on board the Lusitania," but main- 
tained that the responsibility rested with the 
British Government, which, through its plan of 
starving the civilian population of Germany, 
had forced Germany to resort to retaliatory 
measures. The practice of arming British ves- 
sels made it impossible to treat them as mer- 
chant ships; and Germany regretted "that 
Americans felt more inclined to trust to Eng- 
lish promises than to pay attention to warn- 
ings from the German side." In the second 
communication, Germany explained her policy 
with respect to neutral ships in the "war zone." 
Instructions had been issued to avoid attacks 
on neutral vessels under all circumstances. 
"Even when such ships have contraband of 
war on board they are dealt with by subma- 
rines solely according to the rules of interna- 
tional law applying to prize warfare." In the 
event of an unfortunate accident regret would 
be expressed and damages afforded, and when 



66 AMEBICA'S CASE AGAINST GERMANY 

there was a dispute as to the facts, Germany 
was willing to submit the questions to an Inter- 
national Commission of Inquiry as provided 
by the Hague Convention for the Pacific Settle- 
ment of International Disputes. 

The protest of the United States was sent to 
Germany on May 13th, after six days ' delibera- 
tion by President Wilson. It referred in per- 
haps too fulsome terms to "the humane and 
enlightened attitude hitherto assumed by the 
Imperial German Government in matters of in- 
ternational right," and declared that 

"having understood the instructions of the Imperial- 
German Government to its naval commanders to be 
upon the same plane of humane action prescribed by 
the naval codes of other nations, the Government of 
the United States was loath to believe — it cannot now 
bring itself to believe — that these acts, so absolutely 
contrary to the rules, the practices, and the spirit of 
modern warfare, could have the countenance or sanc- 
tion of that great Government. It feels it to be its 
duty, therefore, to address the Imperial German Gov- 
ernment concerning them with the utmost frankness 
and in the earnest hope that it is not mistaken in 
expecting action on the part of the Imperial German 
Government which will correct the unfortunate im- 



THE "LUSITANIA"— OTHEE OUTEAGES 67 

pressions which have been created and vindicate 
once more the position of that Government with re- 
gard to the sacred freedom of the seas." 

Germany had already been informed that the 
United States could not consent to "an abbre- 
viation of the rights of American shipmasters 
or of American citizens bound on lawful er- 
rands as passengers on merchant ships of bel- 
ligerent nationality' ' through the adoption of 
"methods of retaliation which go much beyond 
the ordinary methods of warfare at sea," and 
that the Imperial German Government would 
be held "to a strict accountability for any in- 
fringement of those rights, intentional or inci- 
dental. ' ' The United States, the note continued, 

"does not understand the Imperial German Govern- 
ment to question those rights. It assumes, on the con- 
trary, that the Imperial Government accept, as of 
course, the rule that the lives of noncombatants, 
whether they be of neutral citizenship or citizens of 
one of the nations at war, can not lawfully or right- 
fully be put in jeopardy by the capture or destruc- 
tion of an unarmed merchantman, and recognize also, 
as all other nations do, the obligation to take the 
usual precaution of visit and search to ascertain 



68 AMERICA'S CASE AGAINST GERMANY 

whether a suspected merchantman is in fact of bel- 
ligerent nationality or is in fact carrying contraband 
of war under a neutral flag. 

"The Government of the United States, therefore, 
desires to call the attention of the Imperial German 
Government with the utmost earnestness to the fact 
that the objection to their present method of attack 
against the trade of their enemies lies in the prac- 
tical impossibility of employing submarines in the 
destruction of commerce without disregarding those 
rules of fairness, reason, justice, and humanity 
which all modern opinion regards as imperative. It 
is practically impossible for the officers of a subma- 
rine to visit a merchantman at sea and examine her 
papers and cargo. It is practically impossible for 
them to make a prize of her ; and, if they can not put 
a prize crew on board of her, they can not sink her 
without leaving her crew and all on board of her to 
the mercy of the sea in her small boats. These facts, 
it is understood the Imperial German Government 
frankly admit. "We are informed that in the instances 
of which we have spoken time enough for even that 
poor measure of safety was not given, and in at least 
two of the cases cited not so much as a warning was 
received. Manifestly submarines can not be used 
against merchantmen, as the last few weeks have 
shown, without an inevitable violation of many sacred 
principles of justice and humanity." 



THE "LUSITANIA"— OTHEK OUTEAGES 69 

Particular attention should be given the itali- 
cized clauses, for they marked a position which 
President Wilson abandoned in later exchanges, 
namely, that submarines should not be used 
against commerce at all, but that their opera- 
tions should be confined to war vessels. Had 
this position thus asserted— and based, al- 
though perhaps vaguely, on the rights of hu- 
manity, of all noncombatants rather than sim- 
ply American citizens — been maintained, the 
case of the Government would have been 
stronger and the regrettable controversy over 
armed merchantmen would probably not have 
arisen. Nevertheless, while in some places a 
vindication of public right and a condemnation 
of the illegal character of the German meas- 
ures no matter what noncombatant nationals 
were affected, the note laid greatest stress upon 
the "indisputable rights' ' of American citizens 
to travel 

"wherever their legitimate business calls them upon 
the high seas, and exercise those rights in what should 
be the well-justified confidence that their lives will 
not be endangered by acts done in clear violation of 
universally acknowledged international obligations, 



70 AMERICA'S CASE AGAINST GERMANY 

and certainly in the confidence that their own Gov- 
ernment will sustain them in the exercise of their 
rights.' ' 

The advertisement of the German Embassy, 
appearing in the newspapers before the liner 
sailed and warning Americans to keep away 
from the war zone, was referred to as a com- 
munication of l ' surprising irregularity ' ' and it 
was pointed out 

"that no warning that an unlawful and inhumane 
act will be committed can possibly be accepted as an 
excuse or palliation for that act or as an abatement 
of the responsibility for its commission. 

"Long acquainted as this Government has been 
with the character of the Imperial German Govern- 
ment and with the high principles of equity by which 
they have in the past been actuated and guided, the 
Government of the United States can not believe that 
the commanders of the vessels which committed these 
acts of lawlessness did so except under a misappre- 
hension of the orders issued by the Imperial German 
naval authorities. It takes it for granted that, at 
least within the practical possibilities of every such 
case, the commanders even of submarines were ex- 
pected to do nothing that would involve the lives of 
noncombatants or the safety of neutral ships, even 
at the cost of failing of their object of capture or 



THE "LUSITANIA"— OTHER OUTRAGES 71 

destruction. It confidently expects, therefore, that 
the Imperial German Government will disavow the 
acts of which the Government of the United States 
complains, that they will make reparation so far as 
reparation is possible for injuries which are without 
measure, and that they will take immediate steps to 
prevent the recurrence of anything so obviously sub- 
versive of the principles of warfare for which the 
Imperial German Government have in the past so 
wisely and so firmly contended. ,, 

And the note closed with the following strong 
paragraphs : 

" Expressions of regret and offers of reparation in 
case of the destruction of neutral ships sunk by mis- 
take, while they may satisfy international obligations, 
if no loss of life results, can not justify or excuse a 
practice, the natural and necessary effect of which is 
to subject neutral nations and neutral persons to 
new and immeasurable risks. 

"The Imperial German Government will not ex- 
pect the Government of the United States to omit 
any word or any act necessary to the performance 
of its sacred duty of maintaining the rights of the 
United States and its citizens and of safeguarding 
their free exercise and enjoyment." 

Germany's reply was made on May 28th. It 
disclaimed, first, with regard to the Gushing 



72 AMERICA'S CASE AGAINST GERMANY 

and Gulflight any intention to attack neutral 
vessels; explicit instructions had been given 
to the contrary and if these vessels came to 
grief through no fault of their own, " regret' ' 
would be expressed and indemnification prom- 
ised if the facts justified it. 1 In the case of 
the Falaba the submarine commander intended 
to give the passengers and crew an opportunity 
to save themselves, but when the English cap- 
tain sent up rockets for help, warning was 
given that the ship would be sunk in ten min- 
utes, and actually, it was claimed, twenty-three 
minutes were allowed. 

With regard to the loss of life on the Lusi- 
tania, Germany, it was said, had already ex- 
pressed regret to the neutral governments 
whose nationals had been killed. Important 
facts in connection with the Lusitania, how- 
ever, had escaped the attention of the United 

1 A communication concerning the Gulflight and Cushing was 
sent to Washington three days later. The Gulflight had no 
neutral markings, was apparently accompanied by two British 
convoy ships, and the American flag was not noticed until the 
moment of attack. " According to the attendant circumstances 
there can be no doubt that the attack is not attributed to the 
fault of the commander, but to an unfortunate accident." 
Regret was expressed and compensation promised to American 
citizens who sustained damage. 



THE "LUSITANIA"— OTHER OUTRAGES 73 

States, and these Germany proceeded to state : 
The Lusitania was a large and fast commerce 
steamer, constructed with government funds as 
an auxiliary cruiser; when she left New York, 
guns were on board, mounted under the decks 
and masked; furthermore, in view of the in- 
structions of the British Admiralty that mer- 
chant vessels should attack submarines by 
ramming them, 

"the Imperial Government is unable to consider 
English merchant vessels any longer as 'undefended 
territory' in the zone of maritime war designated by 
the Admiralty Staff of the Imperial German Navy, 
the German commanders are consequently no longer 
in a position to observe the rules of capture other- 
wise usual and with which they invariably complied 
before this. Lastly, the Imperial Government must 
specially point out that on her last trip the Lusitania, 
as on earlier occasions, had Canadian troops and mu- 
nitions on board, including no less than 5,400 cases 
of ammunition destined for the destruction of brave 
German soldiers who are fulfilling with self-sacrifice 
and devotion their duty in the service of the Father- 
land. The German Government believes that it acts 
in just self-defense when it seeks to protect the lives 
of its soldiers by destroying ammunition destined for 
the enemy with the means of war at its command. 



74 AMERICA'S CASE AGAINST GERMANY 

The English steamship company must have been 
aware of the dangers to which passengers on board 
the Lusitania were exposed under the circumstances. 
In taking them on board in spite of this the com- 
pany quite deliberately tried to use the lives of Amer- 
ican citizens as protection for the ammunition car- 
ried, and violated the clear provisions of American 
laws which expressly prohibit, and provide punish- 
ment for, the carrying of passengers on ships which 
have explosives on board. The company thereby 
wantonly caused the death of so many passengers. 
According to the express report of the submarine 
commander concerned, which is further confirmed by 
all other reports, there can be no doubt that the rapid 
sinking of the Lusitania was primarily due to the 
explosion of the cargo of ammunition caused by the 
torpedo. Otherwise, in all human probability, the 
passengers of the Lusitania would have been saved. ' ' 

A final statement of the German position was 
reserved until a reply could be received from 
the United States after it had made an exami- 
nation of these facts. 2 

'The astounding statement is made that Germany had fur- 
nished "ample evidence of its good will by its willingness to 
consider" the proposals of the United States to Great Britain 
and Germany for mutual concessions to secure an international 
modus vivendi, but that ' ' the realization of these proposals 
failed, as is known, on account of their rejection by the Gov- 
ernment of Great Britain." A similar illusion seems to have 



THE "LTTSITANIA"— OTHEK OUTRAGES 75 

This, of course, did not so much as attempt 
to traverse the American contention that the 
sinking of the Lusitania was an illegal, wanton 
act and it ignored the main points of the Ameri- 
can note : that submarines could be used against 
commerce only in violation of international 
law and the dictates of humanity, and that 
reparation should be made and promises given 
for the future. Germany treated the two cases 
of the Gulflight and Cushing more at length in 
a separate communication, dated June 1st. 
The attack by the submarine on the former 
was "an unfortunate accident," due to mis- 
taken identity, and full recompense would be 
furnished for damage done American citizens. 
As for the Cushing, this case had not yet been 
fully investigated but the attack was not 
"aimed at any American ship." 

The reply of the American Government made 
on June 9th noted with satisfaction "the full 
recognition by the Imperial German Govern- 

possessed Ambassador Bernstorff. In a memorandum which he 
presented on the question of armed merchantmen (March 8, 
1916), he said: ''Germany, on March 1, 1915, declared her 
willingness to comply with the proposal of the American Gov- 
ernment. " But, as the reader of the original note can easily 
discover, Germany did nothing of the sort. (See above, p. 33ff.) 



76 AMERICA'S CASE AGAINST GERMANY 

ment, in discussing the cases of the Cushing 
and the Gulflight, of the principle of the free- 
dom of all parts of the open sea to neutral 
ships and the frank willingness of the Imperial 
German Government to acknowledge and meet 
its liability where the fact of attack upon neu- 
tral ships 'which have not been guilty of any 
hostile act' by German aircraft or vessels of 
war is satisfactorily established. ' ' Informa- 
tion regarding the Cushing was promised in 
due course and then the note proceeded to dis- 
cuss the real issue and show the inadequacy 
and evasion of the German reply: 

"With regard to the sinking of the steamer Falaba, 
by which an American citizen lost his life, the Gov- 
ernment of the United States is surprised to find the 
Imperial German Government contending that an ef- 
fort on the part of a merchantman to escape capture 
and secure assistance alters the obligation of the offi- 
cers seeking to make the capture in respect of the 
safety of the lives of those on board the merchant- 
man, although the vessel had ceased her attempt to 
escape when torpedoed. These are not new circum- 
stances. They have been in the minds of statesmen 
and of international jurists throughout the develop- 
ment of naval warfare, and the Government of the 



THE "LUSITANIA"— OTHEK OUTKAGES 77 

United States does not understand that they have 
ever been held to alter the principles of humanity 
upon which it has insisted. Nothing but actual forc- 
ible resistance or continued efforts to escape by flight 
when ordered to stop for the purpose of visit on the 
part of the merchantman has ever been held to for- 
feit the lives of her passengers or crew. The Govern- 
ment of the United States, however, does not under- 
stand that the Imperial German Government is seek- 
ing in this case to relieve itself of liability, but only 
intends to set forth the circumstances which led 
the commander of the submarine to allow himself to 
be hurried into the course which he took." 

In the case of the Lusitania, it was the duty 
of the United States, as in every clearance of a 
merchant vessel from American ports, to see 
that there was no armament for offensive pur- 
poses, that she was not serving as a transport, 
that her cargo was not illegal under American 
statutes, and that she was not in fact a British 
auxiliary vessel. This duty was carried out, 
and the United States could say that the Im- 
perial German Government had been misin- 
formed. The contention regarding the carriage 
of contraband and its explosion was irrelevant 



78 AMERICA'S CASE AGAINST GERMANY 

in considering the legality of the German 
methods for 

1 ' The sinking of passenger ships involves principles 
of humanity which throw into the background any 
special circumstances of detail that may be thought 
to affect the cases, principles which lift it, as the 
Imperial German Government will no doubt be quick 
to recognize and acknowledge, out of the class of 
ordinary subjects of diplomatic discussion or of in- 
ternational controversy. Whatever be the other facts 
regarding the Lusitania, the principal fact is that 
a great steamer, primarily and chiefly a conveyance 
for passengers, and carrying more than a thousand 
souls who had no part or lot in the conduct of the 
war, was torpedoed and sunk without so much as a 
challenge or a warning, and that men, women, and 
children were sent to their death in circumstances 
unparalleled in modern warfare. The fact that more 
than 100 American citizens were among those who 
perished made it the duty of the Government of the 
United States to speak of these things and, once more 
with solemn emphasis, to call the attention of the 
Imperial German Government to the grave responsi- 
bility which the Government of the United States 
conceives that it has incurred in this tragic occur- 
rence, and to the indisputable principle upon which 
that responsibility rests. The Government of the 
United States is contending for something much 



THE "LUSITANIA"— OTHEE OUTRAGES 79 

greater than mere rights of property or privileges 
of commerce. It is contending for nothing less high 
and sacred than the rights of humanity, which every 
Government honors itself in respecting and which no 
Government is justified in resigning on behalf of those 
under its care and authority. Only her actual re- 
sistance to capture or refusal to stop when ordered 
to do so for the purpose of visit could have afforded 
the commander of the submarine any justification 
for so much as putting the lives of those on board 
the ship in jeopardy. This principle the Government 
of the United States understands the explicit instruc- 
tions issued on August 3, 1914, by the Imperial Ger- 
man Admiralty to its commanders at sea to have 
recognized and embodied, as do the naval codes of 
all other nations, and upon it every traveler and sea- 
man had a right to depend. It is upon this principle 
of humanity as well as upon the law founded upon 
this principle that the United States must stand." 

This measured indictment of the German 
policy of frightfulness seems to protest against 
all submarine warfare, even where American 
citizens are not actually affected, and while 
there is no recurrence to the contention of the 
first Lusitania note, that the submarine should 
not be used against commerce at all, there is 
no intimation that this contention has been de- 



80 AMERICA'S CASE AGAINST GERMANY 

parted from. The note goes on to acknowledge 
the expression of willingness on the part of 
Germany to reach an agreement with Great 
Britain, but meanwhile "confidently looks to 
see the justice and humanity of the Govern- 
ment of Germany vindicated in all cases where 
Americans have been wronged or their rights 
as neutrals invaded," and "very earnestly and 
very solemnly renews the representations" of 
its first note which had not been answered. 

"The Government of the United States," it was 
said in conclusion, "cannot admit that the proclama- 
tion of a war zone from which neutral ships have 
been warned to keep away may be made to operate 
as in any degree an abbreviation of the rights either 
of American shipmasters or of American citizens 
bound on lawful errands as passengers on merchant 
ships of belligerent nationality. It does not under- 
stand the Imperial German Government to question 
those rights. It understands it, also, to accept as 
established beyond question the principle that the 
lives of noneombatants can not lawfully or rightfully 
be put in jeopardy by the capture or destruction of 
an unresisting merchantman, and to recognize the 
obligation to take sufficient precaution to ascertain 
whether a suspected merchantman is in fact of bel- 
ligerent nationality or is in fact carrying contraband 



THE "LUSITANIA"— OTHER OUTRAGES 81 

of war under a neutral flag. The Government of the 
United States therefore deems it reasonable to ex- 
pect that the Imperial German Government will adopt 
the measures necessary to put these principles into 
practice in respect of the safeguarding of American 
lives and American ships, and asks for assurances 
that this will be done. ' ' 3 

The first half of the German reply (July 8th) 
to this second Lusitania note, was taken up 

3 The resignation of the then Secretary of State, Mr. Bryan, 
rather than sign this note, is an incident of personal and 
domestic importance rather than of international significance. 
He was anxious, it will be remembered, to employ the principle 
of investigation embodied in his thirty peace treaties (although 
there was no dispute that more than a thousand noncombatants 
were killed), and meanwhile to prevent Americans from travel- 
ing on belligerent ships or on American ships carrying contra- 
band. In the third place he wanted our case against Great 
Britain pushed much more strongly. He explained his signing 
of the first note, which is a much more vigorous communication, 
on the ground that it presented the plaintiff's case; when this 
was not accepted, he desired to recede gracefully. 

There are probably many phases of this whole incident that 
have not been made public. After Mr. Bryan resigned, the note 
was softened (the change has not been published) but in his 
judgment it was not sufficient. During the campaign of 1916 
there was some talk of a mysterious postscript to conciliate 
Germany that was deleted just before transmission. Also, a full 
explanation has never been given of Mr. Bryan 's interview with 
the Austro-Hungarian Ambassador who was told that the first 
Lusitania note was for "home consumption." But with the ex- 
ception of the possible effects of this interview, the incident 
is of only domestic interest. 



82 AMEKICA'S CASE AGAINST GERMANY 

with a protest against British trade restraints 
and the refusal to ratify the Declaration of 
London. There was a hint of justification on 
the basis of Realpolitih when the reply said: 
"It is the sacred duty of the Imperial Govern- 
ment to do all within its power to protect and 
to save the lives of German subjects. If the 
Imperial Government were derelict in these, 
its duties, it would be guilty before God and 
history of the violation of those principles of 
highest humanity which are the foundation of 
every national existence.' ' 

In the case of the Lusitania, there was the 
same evasion of the issue that had character- 
ized the previous statements. Its destruction 
was declared to show "with horrible clearness 
to what jeopardizing of human lives the man- 
ner of conducting the war employed by our 
adversaries leads.' ' If the commander of the 
submarine which destroyed the Lusitania had 
given the crew and passengers time to leave the 
ship before torpedoing it, this would have 
meant the destruction of his own vessel. Fur- 
thermore, it was to be anticipated that such a 
ship would remain above water for a sufficient 



THE "LUSITANIA"— OTHER OUTRAGES 83 

time to allow an escape to be made, and the 
explosive character of the cargo was respon- 
sible for the failure of this expectation. Again, 
it was "pointed out that if the Lusitania had 
been spared thousands of cases of ammunition 
would have been sent to Germany's enemies, 
and thereby thousands of German mothers and 
children robbed of their supporters, ' ' the argu- 
ment, here, apparently being that American and 
English mothers and children could be mur- 
dered on the supposition that the vessel con- 
tained war material. 

Promises were made, however, that Ameri- 
can shipping would be respected, and the sug- 
gestion was offered that the vessels be marked 
so as to be easily recognizable. It was " con- 
fidently' ' hoped "that the American Govern- 
ment will assume the guarantee that these ves- 
sels have no contraband on board,' ' and the 
details of their unhampered passage would 
have to be agreed upon by both belligerents. 
Perhaps it would be possible for a reasonable 
number of neutral steamers to be put under 
the American flag and thus ' ' adequate facilities 
for travel across the Atlantic Ocean can be 



84 AMERICA'S CASE AGAINST GERMANY 

afforded American citizens. There would there- 
fore appear to be no compelling necessity for 
American citizens to travel to Europe in time 
of war on ships carrying an enemy flag. In 
particular, the Imperial Government is unable 
to admit that American citizens can protect an 
enemy ship through the mere fact of their pres- 
ence on board. ' ' 4 

4 The note said that if it should not be possible to acquire 
neutral steamers, ''the Imperial Government is prepared to in- 
terpose no objections to the placing under the American flag by 
the American Government of four enemy passenger steamers 
for the passenger traffic between America and England. The 
assurances of 'free and safe' passage for American passen- 
ger steamers would then be extended to apply under the identi- 
cal pre-conditions to these formerly hostile passenger ships. . . . 

' ' Germany merely followed England 's example when it de- 
clared part of the high seas an area of war. Consequently ac- 
cidents suffered by neutrals on enemy ships in this area of war 
can not well be judged differently from accidents to which 
neutrals are at all times exposed at the seat of war on land, 
when they betake themselves into dangerous localities in spite 
of previous warning." 

Perhaps the German Foreign Office believed that sucli com- 
munications would serve to palliate the American people; but 
certainly Ambassador Bernstorff was under no such delusion. 
The first note was published in the papers on May 31st 
and there was an outburst of criticism. Count Bernstorff 
asked for and secured an interview. with the President and ob- 
tained permission to send to Germany a member of the Embassy 
staff who traveled under a safe conduct arranged for by the 
State Department (June 3rd). There was much difficulty, the 
Ambassador said, in communicating by cable; but it would not 



THE "LUSITANIA"— OTHER OUTRAGES 85 

As was the case with the first German reply 
on the Lusitania tragedy, this note was fol- 
lowed by an unexpected communication de- 
signed to conciliate American opinion and per- 
suade the country that the submarine campaign 
would be directed only against enemy merchant 
vessels and that there was some fairness in the 
contention that Americans should not be used 
to protect such vessels, particularly if they 
carried contraband of war. Submarine activi- 
ties had apparently continued with but slight, 
if any restraint, for on May 25th, the American 
steamer Nebraskan, bound for Delaware Break- 
water was torpedoed 45 miles off the south 
coast of Ireland. The crew at once took to the 
boats, but the vessel had been struck forward 
and did not sink, so the crew was able to take 
her back to Liverpool. No submarine was seen, 
but the circumstances of the explosion, and 
fragments of metal found in the hull of the 
Nebraskan indicated that the vessel had not 
struck a mine. 

seem that the Embassy's representative (Dr. Anton Meyer- 
Gerhard) contributed much towards making the note of July 
8th more satisfactory. 



86 AMEEICA'S CASE AGAINST GERMANY 

On July 12th Ambassador Gerard sent to 
the State Department Germany's admission 
that the Nebraskan had been attacked by a sub- 
marine. No formal protest had been made, but 
when "the German Government received from 
newspaper reports the intelligence ' ' of the in- 
cident, it "started a thorough investigation 
without delay. " Germany asserted that the 
vessel had no markings, that the submarine 
commander was therefore justified in assum- 
ing that it was an English steamer, but that 
when, sometime after the torpedo was fired, 
the Nebraskan hoisted the American flag, fur- 
ther attack was refrained from. 

"It results from this, without a doubt, that attack 
on the steamer Nebraskan was not meant for the 
American flag; nor is it traceable to any fault on 
the part of the commander of the German subma- 
rine, but is to be considered an unfortunate accident. 
The German Government expresses its regret at the 
occurrence to the Government of the United States 
of America and declares its readiness to make com- 
pensation for the damage thereby sustained by Amer- 
ican citizens. 

"As in the case of the steamer Gulflight, the Ger- 
man Government begs to suggest that the American 



THE "LUSITANIA"— OTHER OUTRAGES 87 

Government submit to it a detailed statement of such 
damage or, if doubt might arise as to certain points, 
to designate an expert to fix the amount of compen- 
sation, acting in conjunction with a German expert." 

But, other cases occurred during the ex- 
changes over the Lusitania which were so fla- 
grant that it was but scant comfort to know 
that Germany was willing to make reparation 
for the GulfligM and the Nebrashan. Ameri- 
can interests were directly affected when the 
British steamer Armenian was torpedoed off 
the Cornwall coast on June 28th, several Amer- 
icans employed to care for the horses and 
mules of the vessel's cargo being killed. In 
this particular instance, however, the United 
States could not regard the sinking as an " un- 
friendly act," because the Armenian attempted 
to escape, and a chase of an hour ensued with 
the submarine shelling the vessel. The cap- 
tain then surrendered, and after he and the 
crew had left the ship, it was torpedoed, the 
only exceptional feature on account of the na- 
ture of the submarine being that the crew had 
but the "poor security" of the open sea and 
were not taken on board of the capturing ves- 



88 AMERICA'S CASE AGAINST GERMANY 

sel. Likewise, the British merchantman Anglo- 
Calif omian, on July 2nd, tried to escape from 
a submarine, the captain and several members 
of the crew being killed by shells, but wireless 
calls for help brought British destroyers to the 
scene and the submarine was forced to sub- 
merge. Again, three Americans were saved by 
the American bark Normandy when the Rus- 
sian steamer Leo was sunk with no opportunity 
for saving lives. 5 

On July 9th, a repetition, although on a 
smaller scale, of the Lusitania outrage, was 
narrowly missed. The British steamship Or- 
duna, bound west from Liverpool, with twenty- 
one American passengers on board was at- 
tacked by a submarine. A torpedo cleared the 
stern by a margin of only ten feet and six shells 
were fired, but the Orduna was able to escape. 6 

"The charge was made that the submarine compelled the 
Normandy to act as a shield while the approach of the Leo was 
awaited. Associated Press Dispatch, dated July 13, 1915. 

• The German explanation made on September 9th and trans- 
mitted by Mr. Gerard on the 11th, said that the Orduna had no 
markings but that the first attack on her "by a torpedo was not 
in accordance with the existing instructions, which provide that 
large passenger steamers are only to be torpedoed after previous 
warning and after the rescuing of passengers and crew. The 
failure to observe the instructions was based on an error, which 



THE "LUSITANIA"— OTHER OUTRAGES 89 

On July 25th, the American ship Leelanaw was 
sunk while flying the American flag, with no 
loss of life. Ample time was given the crew 
to leave the vessel and the submarine towed 
the life-boats for some distance. 7 

A few days before the news of this last inci- 
dent came, Secretary of State Lansing sent 
his last formal communication on the Lusitania 
(July 21st). He called the German reply 
"very unsatisfactory' ' for instead of meeting 
the real differences it proposed arrangements 
which would set aside the principles of law 

is at any rate comprehensible, and the repetition of which ap- 
pears to be out of the question, in view of the more explicit 
instructions issued in the meantime. Moreover, the commanders of 
the submarines have been reminded that it is their duty to exer- 
cise greater care and to observe carefully the orders issued.' ' 

7 On October 16th, the German Foreign Office declared that the 
commander had acted in accordance with the principles of in- 
ternational law and that he was justified in sinking the vessel 
since more than one half of the cargo was absolute contraband 
(flax). The commander was unable to take the steamer into a 
port without impairing-the success of his operations and was 
justified in destroying the vessel under the Declaration of 
London. However, in this case, as in that of the William P. 
Frye, the Treaty of 1799 was applicable, and the Prize Court 
would determine the amounts due the American owners. The 
reply of the United States (November 30th) insisted, as it had 
in the Frye case, that the amount of the indemnity be deter- 
mined by diplomatic negotiation. 



90 AMERICA'S CASE AGAINST GERMANY 

and humanity for which the Government of 
the United States was contending. The Gov- 
ernment of the United States noted with satis- 
faction, however, 

"that the Imperial German Government recognizes 
without reservation the validity of the principles in- 
sisted on in the several communications which this 
Government has addressed to the Imperial German 
Government with regard to its announcement of a 
war zone and the use of submarines against mer- 
chantmen on the high seas — the principle that the 
high seas are free, that the character and cargo of a 
merchantman must first be ascertained before she 
can lawfully be seized or destroyed, and that the lives 
of noncombatants may in no case be put in jeopardy 
unless the vessel resists or seeks to escape after being 
summoned to submit to examination ; for a belligerent 
act of retaliation is per se an act beyond the law, 
and the defense of an act as retaliatory is an admis- 
sion that it is illegal." 

This definitely narrowed the controversy until 
the German case was made to rest merely on 
the ground that the submarine blockade was 
justified as retaliatory for England's exten- 
sions of international law, and to such an argu- 
ment the United States interposed a denial 
which, as will be seen later, was generally 



THE "LUSITANIA"— OTHER OUTRAGES 91 

sound, if too broad, although this is not to say 
that the German contention should be accepted, 
even in part. 8 

8 Anticipatory of a more detailed consideration later, it may- 
be pointed out here, that the British Ambassador in a note of 
March 1, 1915, frankly justified England's more stringent 
measures as retaliatory for Germany's violations of interna- 
tional law; but it was promised that they would be enforced 
"without risk to neutral ships or to neutral or noncombatant 
life and in strict observance of the dictates of humanity.' ' 
With regard to the German methods, there were the following 
pertinent remarks: 

"The sinking of prizes is in itself a questionable act, to be 
resorted to only in extraordinary circumstances and after pro- 
vision has been made for the safety of all the crew or passengers 
(if there are passengers on board). The responsibility for dis- 
criminating between neutral and enemy vessels, and between 
neutral and enemy cargo, obviously rests with the attacking ship, 
whose duty it is to verify the status and character of the vessel 
and cargo, and to preserve all papers before sinking or ever 
capturing it. So also is the humane duty of providing for the 
safety of the crews of merchant vessels, whether neutral or 
enemy, an obligation upon every belligerent. It is upon this 
basis that all previous discussions of the law for regulating 
warfare at sea have proceeded. 

1 ' A German submarine, however, fulfills none of these obliga- 
tions. She enjoys no local command of the waters in which she 
operates. She does not take her captures within the jurisdiction 
of a prize court. She carries no prize crew which she can put 
on board a prize. She uses no effective means of discriminating 
between a neutral and an enemy vessel. She does not receive on 
board for safety the crew and passengers of the vessel she sinks. 
Her methods of warfare are therefore entirely outside the scope 
of any of the international instruments regulating operations 
against commerce in time of war. The German declaration 
substitutes indiscriminate destruction for regulated capture. ' ' 



92 AMERICA'S CASE AGxilNST GERMANY 

"The Government of the United States is, 
however/ ' the note said, "keenly disappointed 
to find that the Imperial German Government 
regards itself as in large degree exempt from 
the obligation to observe these principles, even 
where neutral vessels are concerned, by what 
it believes the policy and practice of the Gov- 
ernment of Great Britain to be in the present 
war with regard to neutral commerce. " Ger- 
many was told here, just as she was to be told 
more forcibly in connection with her qualified 
pledge after the sinking of the Sussex, 9 that 
the conduct of other belligerents was irrelevant 
to a discussion of "grave and unjustifiable vio- 
lations of the rights of American citizens by 
German naval commanders"; these "illegal 
and inhuman acts, however justifiable they may 
be thought to be against an enemy who is be- 
lieved to have acted in contravention of law 
and humanity, are manifestly indefensible 
when they deprive neutrals of their acknowl- 
edged rights, particularly when they violate the 
right to life itself. 

" If a belligerent can not retaliate against an 

9 See below, p. 173ff. 



THE "LUSITANIA"— OTHER OUTRAGES 93 

enemy without injuring the lives of neutrals, as 
well as their property, humanity, as well as 
justice and a due regard for the dignity of 
neutral powers, should dictate that the practice 
be discontinued. ,, 

The Government of the United States pro- 
fessed itself not unmindful of the fact that 
when the existing international rules were for- 
mulated, the nations did not have in view the 
use of submarines, and announced that it was 
" ready to make reasonable allowances for these 
novel and unexpected aspects of war at sea ; but 
it can not consent to abate any essential or fun- 
damental right of its people because of a mere 
alteration of circumstances. The rights of neu- 
trals in time of war are based upon principle, 
not upon expediency, and the principles are 
immutable. It is the duty and obligation of 
belligerents to find a way to adapt the new cir- 
cumstances to them. ' ' 

Secretary of State Lansing then apparently 
took the position that submarines could be used 
against commerce with a regard for the prin- 
ciples of international law and humanity and 
thus abandoned the belief, expressed in the first 



94 AMEKICA'S CASE AGAINST GERMANY 

Lusitania note that no submarine activities 
against commerce should be resorted to. In a 
paragraph of doubtful accuracy he said: 

"The events of the past two months have clearly 
indicated that it is possible and practicable to con- 
duct such submarine operations as have characterized 
the activity of the Imperial German Navy within the 
so-called war zone in substantial accord with the ac- 
cepted practices of regulated warfare. The whole 
world has looked with interest and increasing satis- 
faction at the demonstration of that possibility by 
German naval commanders. It is manifestly pos- 
sible, therefore, to lift the whole practice of subma- 
rine attack above the criticism which it has aroused 
and remove the chief causes of offense. ' ' 10 

10 Here he probably had reference to the attacks on the 
Armenian and Anglo-Calif or nian both of which attempted to 
escape. But it would seem that the inapplicability of the sub- 
marine to warfare on commerce had been demonstrated by the 
"unfortunate accidents" of the Gulflight and NebrasTcan, ad- 
mitted by Germany, "accidents" which could not have hap- 
pened in cruiser warfare according to the recognized principles 
of international law. The facts of the Orduna incident which 
appear to negative Secretary Lansing's position even more 
definitely did not become known until after the despatch of his 
note. In the second American Lusitania note, a paragraph with 
reference to the Falaba correctly said that an effort to escape 
did not alter the obligation to safeguard the lives of those on 
board the merchantman. The force used could only be suffi- 
cient to check the flight or overcome the resistance. See above, 
p. 51 and below, p. 159. 



THE "LUSITANIA"— OTHER OUTRAGES 95 

Finally, the German Government was again 
called npon to disavow "the wanton act of its 
naval commander in sinking the Lusitania" 
and to offer ' ' reparation for the American lives 
lost so far as reparation can be made for a 
needless destruction of human life by an illegal 
act. ' ' The suggestion regarding vessels under 
the American flag which would have free 
passage in the war zones was rejected since 
"the very agreement would, by implication, 
subject other vessels to illegal attack and would 
be a curtailment and therefore an abandonment 
of the principles for which this Government 
contends and which in times of calmer coun- 
sels every nation would concede as of course.' ' 
And this solemn warning was conveyed: 

"The very value which this Government sets upon 
the long and unbroken friendship between the people 
and Government of the United States and the people 
and Government of the German nation impels it 
to press very solemnly upon the Imperial German 
Government the necessity for a scrupulous observ- 
ance of neutral rights in this critical matter. Friend- 
ship itself prompts it to say to the Imperial Govern- 
ment that repetition by the commanders of German 
naval vessels of acts in contravention of those rights 



96 AMEEICA'S CASE AGAINST GERMANY 

must be regarded by the Government of the United 
States, when they affect American citizens, as delib- 
erately unfriendly." 

This, as I have said, was the final formal 
word of the United States on the Lusitania; 
further negotiations, to be referred to later, 
were conducted by means of "conversations" 
between the German Ambassador and the Sec- 
retary of State. But in the meantime a repe- 
tition, on a smaller scale, of the Lusitania trag- 
edy brought the crisis to a head and wrung 
concessions and pledges, although limited, from 
the Imperial German Government. 11 

11 The British Admiralty announced on May 18th that the 
submarine campaign had sunk 460,628 tons of British merchant 
and fishing vessels. This had caused the death of about 1556 
persons. "On the other hand, no enemy or neutral subject had 
lost his life in consequence of the destruction by the English 
of enemy merchant vessels. Moreover, British warships had 
saved from drowning more than 1200 members of the crews of 
German warships destroyed, whereas no members of British 
crews had been saved by the Germans. ' ' Quoted by Garner, 
"International Law in the European War," American Journal 
of International Law, Vol. IX, p. 607. 



CHAPTER V 



THE GEKMAN PLEDGES 



In defense of her action in sinking the Lusi- 
tania Germany had alleged, among the various 
reasons to which from time to time she re- 
sorted, that the vessel was carrying contraband, 
and that, in order to prevent innocent women 
and children from being widowed and orphaned, 
she was justified in taking any measures to stop 
such a cargo before it reached her enemy. The 
Arabic, however, permitted no such "defense," 
for this White Star Liner was bound for New 
York and hence carrying no contraband, was 
unarmed, and was torpedoed without warning 
(August 19th), twenty-five of the crew and nine- 
teen passengers being reported missing, among 
them two Americans. Here, certainly, it 
seemed, was the "deliberately unfriendly" act 
referred to in the last American note. 

That Germany and her Ambassador in this 

97 



98 AMERICA'S CASE AGAINST GERMANY 

country recognized the seriousness of the in- 
cident is shown by the instructions which Count 
Bernstorff received from Berlin and which he 
made public on August 24th. In the absence 
of official information, the statement said, 

"The German Government trusts that the Ameri- 
can Government will not take a definite stand at 
hearing only the reports of one side, which, in the 
opinion of the Imperial Government, cannot corre- 
spond with the facts, but that a chance will be given 
to Germany to be heard equally. 

"Although the Imperial Government does not 
doubt the good faith of the witnesses whose state- 
ments are reported by the newspapers in Europe, it 
should be borne in mind that these statements are 
naturally made under excitement which might easily 
produce wrong impressions. 

1 ' If Americans should actually have lost their lives, 
this would naturally be contrary to our intentions. 
The German Government would deeply regret the 
fact, and begs to tender sincere sympathies to the 
American Government." 

And, realizing that American public opinion 
would tolerate no more evasions, pleas of "un- 
fortunate accidents, ' ' or further justification of 
the submarine warfare as a measure of reprisal, 



THE GERMAN PLEDGES 99 

the Imperial Government authorized Ambassa- 
dor Bernstorff to convey to the United States 
formal assurances that the outrages would be 
stopped. This was done in the following note, 
addressed to Secretary Lansing and dated Sep- 
tember 1st : 

"My Bear Mr. Secretary: 

"With reference to our conversation of this morn- 
ing I beg to inform you that my instructions 1 con- 
cerning our answer to your last Lusitania note con- 
tain the following passage : 

1 ( ' Liners will not be sunk by our submarines with- 
out warning and without safety of the lives of non- 
combatants, provided that the liners do not try to 
escape or offer resistance.' 

"Although I know that you do not wish to discuss 
the Lusitania question till the Arabic incident has 
been definitely and satisfactorily settled, I desire to 
inform you of the above because this policy of my 
Government was decided on before the Arabic inci- 
dent occurred. 

"I have no objection to your making any use you 
may please of the above information. 
"I remain, etc., 

"J. Bernstorff." 

1 The exchange of formal notes had ceased and the Lusitania 
case was being discussed by the Ambassador and the State 
Department. 



100 AMEKICA'S CASE AGAINST GERMANY 

Commenting on this letter, Secretary of State 
Lansing said: 

"In view of the clearness of the foregoing state- 
ment, it seems needless to make any comment in re- 
gard to it, other than to say that it appears to be a 
recognition of the fundamental principle for which 
we have contended." 

But subsequent events showed that this com- 
ment by Secretary Lansing was too optimistic. 
The German excuse for the sinking of the 
Arabic (made on September 7th) was that the 
commander thought 

"that the steamer had the intention of attacking 
and ramming him. In order to anticipate this attack 
he gave orders to have the submarine submerge and 
fired a torpedo at the steamer. After firing he con- 
vinced himself that the people on board were being 
rescued in fifteen boats. 

"According to his instructions the commander was 
not allowed to attack the Arabic without warning 
and without saving lives unless the ship attempted 
to escape or offered resistance. He was forced to 
conclude from the attendant circumstances that the 
Arabic planned a violent attack on the submarine. 
This conclusion is all the more obvious, as he had 
been fired upon at a great distance in the Irish Sea 



THE GERMAN PLEDGES 101 

on August 14— that is, a few days before— by a 
large passenger steamer apparently belonging to the 
British Royal Mail Steam Packet Company, which he 
had neither attacked nor stopped. 

' ' The German Government most deeply regrets that 
lives were lost through the action of the commander. 
It particularly expresses this regret to the Govern- 
ment of the United States on account of the death 
of American citizens." 

Germany refused to acknowledge any obliga- 
tion to grant indemnity, even if the commander 
was mistaken, but offered to submit this phase 
of the incident to the Hague Tribunal. This 
position, while marking from the standpoint of 
the United States a qualified diplomatic vic- 
tory, was* far from satisfactory, and serious 
doubt was thrown on the bona fides of the Ger- 
man pledges by the torpedoing of the Hespe- 
rian. This liner was sunk on September 4th 
with the loss of twenty-six lives, and the inci- 
dent aided in impressing on the United States 
the need for a very definite understanding with 
Germany. 2 

2 On September 14th a semi-official statement of the German 
position asserted that the disaster must have been caused by a 
mine. ' ' According to a pre-arranged distribution, ' ' it was not 



102 AMERICA'S CASE AGAINST GERMANY 

Another month of negotiation ensued, and 
then the Arabic crisis was apparently settled. 
On October 5th the German Ambassador noti- 
fied the State Department that the instructions 
to the submarine commanders had been "made 
so stringent that the recurrence of incidents 
similar to the Arabic case is considered out of 
the question. 

"According to the report of Commander 
Schneider of the submarine that sank the 
Arabic, and his affidavit as well as those of his 
men, Commander Schneider was convinced that 
the Arabic intended to ram the submarine. On 
the other hand, the Imperial Government does 
not doubt the good faith of the affidavits of the 
British officers of the Arabic, according to 
which the Arabic did not intend to ram the sub- 
marine. The attack of the submarine, there- 
possible for a German submarine to be in that vicinity when the 
Hesperian sank; and the statement claimed, further, that "the 
explosion, according to descriptions received from British 
sources, was of such a nature as to indicate from its effects 
that it was rather of a mine than of a torpedo. ' ' The British 
Admiralty forwarded to the State Department fragments of 
metal picked up on the deck which American naval experts de- 
clared were parts of a torpedo. This decision was announced 
by the State Department on October 30th. The case against 
Germany, on account of this incident, however, was not pressed. 



THE GERMAN PLEDGES 103 

fore, was undertaken against the instructions 
issued to the commander. The Imperial Gov- 
ernment regrets and disavows this act and has 
notified Commander Schneider accordingly. 

" Under these circumstances my Government 
is prepared to pay an indemnity for American 
lives which to its deep regret have been lost 
on the Arabic. I am authorized to negotiate 
with you about the amount of this indemnity. ' ' 3 

This result of the Arabic incident seemed to 
indicate that Germany was alarmed over the 
danger of a break with the United States. "A 
diplomatic victory for the United States" was 
the description given by Count von Bernstorff 
and the concessions now secured after the 
stringent announcement of February 4th in- 
cluded the following, as set forth in a semi- 
official statement: (1) an acknowledgment of 
the right of American ships to sail through the 

8 Ambassador Bernstorff in a note to the State Department 
on September 4th reported the action of an English merchant 
vessel in firing on a submarine without a challenge of any kind 
and stressed "the point that British merchant vessels which 
attack German submarines of course expose themselves to the 
danger of destruction; American citizens who travel on such 
vessels do so on their own responsibility and incur the greatest 
risk." 



104 AMERICA'S CASE AGAINST GERMANY 

war zone; (2) an acknowledgment of liability 
for American ships damaged or sunk, even 
when carriers of contraband, this liability aris- 
ing, however, under the Treaty of 1799 and not 
under general principles of international law; 
(3) a promise not to sink American ships carry- 
ing conditional contraband; (4) an offer to ar- 
bitrate the German claim that American ships 
carrying absolute contraband might be sunk 
(the Frye case) ; (5) an acknowledgment of lia- 
bility for damages to American citizens on mer- 
chant ships, even those of the enemy, when the 
attack was without warning and with no re- 
sistance or attempt to escape; (6) a promise 
not to attack " liners' ' even when enemy ones, 
without allowing time for the escape of the pas- 
sengers and crew; (7) a disavowal of the sink- 
ing of the Arabic and an expression of regret 
at the incident; (8) a promise that in the future 
a mistake by a submarine commander in think- 
ing that he was to be attacked would not be 
regarded as diminishing liability for damages 
to American citizens. 4 

4 On October 30th the German Foreign Secretary in a com- 
munication to Ambassador Gerard, noted "with satisfaction 
that a full understanding has been reached between our two 



THE GERMAN PLEDGES 105 

Unquestionably the United States had won a 
great diplomatic victory. The war party in 
Germany and a majority of the people seemed 
to be convinced of the righteousness of the 
submarine warfare, and of the pro-English, un- 
reasonable character of the threats of the 
United States, veiled, to be sure, but neverthe- 
less very real, that the continuance of friendly 
relations was contingent upon an abandonment 
of such methods. However, even these pledges 
afforded reasons for doubt about the future. 
While no official announcement was made, ap- 
parently authentic reports were to the effect 
that the British had been very successful in 
destroying German submarines, and perhaps 
the Imperial Government was willing to make 
pledges, which would prevent a crisis for the 
time being, until new submarines could be con- 
structed. The word "liners" was ambiguous, 
and ensuing incidents would inevitably cause a 
debate over its meaning. President Wilson's 

Governments" — with particular reference to the Arabic inci- 
dent. He repeated Count Bernstorff's statement that "the 
attack of the submarine to our regret, was not in accordance 
with their instructions issued, and that the commander has 
been notified accordingly." 



106 AMEKICA'S CASE AGAINST GEKMANY 

address to Congress on the Sussex case indi- 
cated that he did not consider it to include more 
than passenger vessels, and there was thus left 
open the question of American seamen on 
British vessels which carried no passengers. 
More than that, the measure of safety which 
would be afforded noncombatants in case a liner 
was sunk without warning was undefined and, 
although a month later, Germany did indicate 
her conception of the duties imposed upon her 
submarines, the Arabic pledges left this ques- 
tion open. 

The communication to which I refer was sent 
on November 29th (although not published 
until January 8, 1916) and related to the settle- 
ment of the Frye case. It contained these para- 
graphs, pertinent to the submarine controversy 
and corroborative of the German pledges : 

"Until the decision of the permanent court of ar- 
bitration, the German naval forces will sink only such 
American vessels as are loaded with absolute con- 
traband, when the pre-conditions provided by the 
Declaration of London are present. 

"In this the German Government quite shares the 
view of the American Government that all possible 



THE GEKMAN PLEDGES 107 

care must be taken for the security of the crew and 
passengers of a vessel to be sunk. Consequently, the 
persons on board of a vessel may not be ordered into 
her lifeboats except when the general conditions, that 
is to say, the weather, the condition of the sea, and 
the neighborhood of the coasts afford absolute cer- 
tainty that the boats will reach the nearest port. For 
the rest, the German Government begs to point out 
that in cases where the German naval forces have 
sunk neutral vessels for carrying contraband no loss 
of life has yet occurred." 

And in a communication dated September 9, 
1915 (but not published until October 29th), the 
German Foreign Office asserted that the Ameri- 
can bark Normandy, from New York to Liver- 
pool with a cargo of lumber, "was permitted 
to continue her voyage unhindered, as it was 
impossible to guarantee that the crew would be 
surely rescued in the small boats if the ship 
were sunk. ' ' 5 

These statements were reassuring. The 
Lusitania case had not been settled, but there 

8 This communication explained the attack on the Orduna. 
See above, p. 88. The Normandy also figured in the sub- 
marine operations when, it was charged, she was used as a 
shield during an attack on the Bussian ship Leo, See above, 
p. 88, 



108 AMERICA'S CASE AGAINST GERMANY 

were no further outrages by submarines, and 
in view of the concessions already secured, the 
Administration probably feared that it would 
seem too insistent if, by reason of potential 
dangers, it pressed for definitions. More than 
that, an admission had been obtained that the 
legal position taken by the United States was 
unassailable, and the German argument had 
been boiled down to her assertion in the Lusi- 
tania note of May 28th, that the Imperial Gov- 
ernment acted "in just self-defense when it 
seeks to protect the lives of its soldiers by de- 
stroying munitions destined for the enemy with 
the means of war at its command." The dis- 
avowal of the Arabic and the pledges, although 
not entirely satisfactory, seemed to clear the 
way for a settlement of the Lusitania contro- 
versy between Ambassador Bernstorff and Sec- 
retary Lansing. 



CHAPTER VI 

THE TRADE IN MUNITIONS OF WAR 

In the communications from the German 
Government to the United States concerning 
the war zone decree and submarine blockade 
which have already been referred to, there oc- 
cur occasional references to the extensive trade 
in munitions of war carried on by American 
citizens. Thus, in the German reply to Presi- 
dent Wilson's "strict accountability ' ' note of 
February 10th, attention was directed "very 
particularly and with the greatest emphasis' ' 
to the fact ' ' that a trade in arms exists between 
American manufacturers and Germany's ene- 
mies which is estimated at many hundred mil- 
lion marks." No formal breach of neutrality 
was charged, but Germany professed herself 
" at a great disadvantage through the fact that 
the neutral powers have hitherto achieved no 
success or only an unmeaning success in their 

109 



110 AMERICA'S CASE AGAINST GEKMANY 

assertion of the right to trade with Germany, 
acknowledged to be legitimate by international 
law, whereas they make unlimited use of their 
right to tolerate trade in contraband with Eng- 
land and our other enemies. Conceded that it is 
the formal right of neutrals not to protect their 
legitimate trade with Germany and even to 
allow themselves knowingly and willingly to be 
induced by England to restrict such trade, it is 
on the other hand not less their good right, 
although unfortunately not exercised, to stop 
trade in contraband, especially the trade in 
arms, with Germany's enemies.'' 

The same argument was made by the German 
Ambassador in a memorandum which he pre- 
sented to the State Department on April 4, 
1915. After complaining against the British 
trade restrictions and asserting that the lack of 
success on the part of the United States in se- 
curing a relaxation of the measures taken justi- 
fied the assumption that the violations of inter- 
national law were acquiesced in, he adverted to 
the attitude of the United States on the muni- 
tion question. Here consideration should be 
given not only to the formal aspect of the case 



THE TRADE Itf MUNITIONS OF WAR 111 

but also to "the spirit in which neutrality is 
carried out." He recognized that an obvious 
retort was that in previous wars Germany had 
supplied arms to belligerents, but the situation 
now was different, for, he said, "then it was not 
a question whether war material should be sup- 
plied to the belligerents, but who should supply 
it in competition with other nations. In the 
present war all nations having a war material 
industry worth mentioning are either involved 
in the war themselves or are engaged in per- 
fecting their own armaments, and have there- 
fore laid an embargo against the exportation 
of war material. The United States is accord- 
ingly the only neutral country in a position to 
furnish war materials. The conception of neu- 
trality is thereby given a new purport, inde- 
pendently of the formal question of hitherto 
existing law. In contradiction thereto, the 
United States is building up a powerful arms 
industry in the broadest sense, the existing 
plants not only being worked but enlarged by 
all available means, and new ones built. The 
international conventions for the protection of 
the rights of neutral nations doubtless sprang 



112 AMERICA'S CASE AGAINST GERMANY 

from the necessity of protecting the existing 
industries of neutral nations as far as possible 
from injury in their business. But it can in no 
event be in accordance with the spirit of true 
neutrality if, under the protection of such in- 
ternational stipulations, an entirely new indus- 
try is created in a neutral state, such as is the 
development of the arms industry in the United 
States, the business whereof, under the present 
conditions, can benefit only the belligerent 
powers.' ' 

Assuming a theoretical willingness to supply 
Germany, the case would not be altered. If 
America desired a true neutrality, the United 
States could prevent this one-sided trade or at 
least utilize the weapon which it offered, and 
by declaring an embargo protect legitimate 
trade with Germany, particularly in foodstuffs, 
it being probable that Great Britain could thus 
be made to acquiesce. Finally, the memoran- 
dum requested that the spirit of " genuine neu- 
trality' ' that had actuated the United States in 
putting an embargo on the shipment of arms 
to Mexico should dictate a similar policy in 



THE TRADE IN MUNITIONS OF WAR 113 

this instance. The position of the Administra- 
tion had already been stated very definitely. 

Orders were received by American manufac- 
turers soon after the war began, and on Octo- 
ber 15th, in response to requests as to the legal- 
ity of the traffic, the State Department issued a 
memorandum which informed the contractors 
that they were at liberty to meet any demands, 
subject to the risk that, if intercepted, the goods 
could be confiscated and destroyed. The first 
official complaint against the attitude of the 
United States, or rather against the activities 
of the manufacturing firms, came on December 
8th, when Count BernstorfT charged that the 
English army was using dumdum bullets, fur- 
nished by an American company. The State 
Department replied a month later, refusing to 
consider the charges, and transmitting cate- 
gorical denials from the companies that they 
had made any war implements the use of which 
was not permitted by international law. 1 

Meanwhile, the State Department had taken 

1 This and several other paragraphs in this chapter are taken 
from an article entitled "The American Congress and the Ex- 
port of War Munitions" which I contributed to the Contem- 
porary Review for December, 1915, 



114 AMERICA'S CASE AGAINST GERMANY 

a position which, in the opinion of a good many 
able international lawyers, while commendable 
for its motive, was too far advanced. The De- 
partment advised the Bethlehem Steel Com- 
pany that the construction of submarine parts 
for England, to be assembled after delivery, 
would be a violation of the Hague provision 
that neutrals may not fit out and arm war 
vessels for a belligerent. This opinion was at 
the request of the President of the Steel Com- 
pany, and did not follow any formal protest. 
Nevertheless the Administration's apparent 
willingness to be too strict led the German Am- 
bassador on January 18th to protest that the 
construction of hydro-aeroplanes was a viola- 
tion of the same provision. To this the Secre- 
tary of State replied as follows: 

"As to the assertion of the character of the 
hydro-aeroplanes, I submit the following com- 
ments : The fact that a hydro-aeroplane is fitted 
with apparatus to rise from and alight upon 
the sea does not, in my opinion, give it the 
character of a vessel any more than the wheels 
attached to an aeroplane fitting it to rise from 
and alight upon land give the latter the charac- 



THE TEADE IN MUNITIONS OF WAR 115 

ter of a land vehicle.' ' "The answer of the 
Secretary of State was a nugget of gold in the 
dry pages of diplomatic correspondence," says 
a recent writer. " Presumably, if conditions 
were reversed, and the British were protesting 
hydro-aeroplanes which were being shipped to 
Germany, the ingenious German Ambassador 
would contend that the machines had asbestos 
fittings on their wings and hence were to be 
classed as fireflies." 2 

The American position on the general ques- 
tion was restated in January when Secretary of 
State Bryan issued, in the form of a letter to 
Senator Stone, a denial of current charges that 
the United States, in observing neutrality, had 
been unfriendly to Germany and Austria-Hun- 
gary. This letter, written by Mr. Lansing, re- 
ferred to the sales by German manufacturers 
during the Russo-Japanese War, and quoted a 
memorandum of the Imperial Government in 
which it was said that ' ' under the general prin- 
ciples of international law, no exception can 
be taken to neutral states, letting war material 
go to Germany's enemies from or through neu- 

2 Clapp, Economic Aspects of the War, pp. 296-297. 



116 AMERICA'S CASE AGAINST GERMANY 

tral territory." In the United States, however, 
those who for various reasons desired an em- 
bargo, were on the increase both in number and 
in power, so the German Government was en- 
couraged to continue the discussion, not so 
much on the legal principle, as in relation to our 
controversy with Great Britain, and there fol- 
lowed the German communication of February 
16th and the Ambassador's memorandum of 
April 4th. 

President Wilson himself is said to have 
written the reply to the latter and it was in 
the nature of a rebuke. He declared, first of 
all, that the ' ' relations of the two Governments 
with one another cannot wisely be made a sub- 
ject of discussion with a third Government, 
which cannot be fully informed as to the facts, 
and which cannot be fully cognizant of the 
reasons for the course pursued." That the 
United States had ever yielded any of its rights 
to one of the belligerents was vigorously de- 
nied; and the note expressed surprise that 
Count BernstorfT had not referred to the at- 
tempt to secure mutual concessions from the 
belligerents, not as of right but as a friend of 



THE TEADE IN MUNITION'S OF WAR 117 

both parties. The attempt was unsuccessful 
since Germany, as I have pointed out, gave but 
a very limited approval, and President Wilson 
regretted "that your Excellency did not deem 
it worthy of mention in modification of the im- 
pressions you expressed/ ' The note concluded 
with the following statement : 

"This Government holds, as I believe Your Excel- 
lency is aware, and as it is constrained to hold in 
view of the present indisputable doctrines of inter- 
national law, that any change in its own laws of neu- 
trality during the progress of a war which would 
affect unequally the relations of the United States 
with the nations at war would be an unjustifiable de- 
parture from the principles of strict neutrality by 
which it has consistently sought to direct its actions, 
and I respectfully submit that none of the circum- 
stances urged in Your Excellency's memorandum al- 
ters the principle involved. The placing of an em- 
bargo on the trade in arms at the present time would 
constitute such a change and be a direct violation of 
the neutrality of the United States. It will, I feel 
assured, be clear to Your Excellency that, holding 
this view and considering itself in honor bound by 
it, it is out of the question for this Government to 
consider such a course. ' ' 3 

3 1 ' A neutral Power is not bound to prevent the export or 
transit, for the use of either belligerent, of arms, ammunitions, 



118 AMEKICA'S CASE AGAINST GEEMANY 

This position was in exact consonance with 
the traditional American attitude which need 
not be discussed in any great detail. The legal- 
ity of the traffic has been maintained without 
exception. It was first asserted during the 
Napoleonic Wars, when, in its efforts to pre- 
serve a strict and impeccable neutrality, the 
United States was confronted by problems, 
which, comparatively, were more important 
than those of the present, for the period was 
one in which the fundamental principles of neu- 
trality were being slowly, but definitely shaped. 
To a memorial protesting against shipments to 
France, Jefferson answered "that our citizens 
have always been free to make, vend, and export 
arms; that it is the constant occupation and 
livelihood of some of them. To suppress their 
callings, the only means, perhaps, of their sub- 
sistence, because a war exists in foreign and 

or, in general, of anything which could be of use to an army or 
fleet." (Article 7). 

" . . . these rules should not, in principle, be altered, in 
the course of the war, by a neutral Power, except in a case 
where experience has shown the necessity for such change for 
the protection of the rights of that power." (Preamble.) 
Convention (XIII) Concerning the Eights and Duties of Neu- 
tral Powers in Naval War, Hague Conference, 1907. 



THE TEADE IN MUNITIONS OF WAR 119 

distant countries, in which we have no concern, 
would scarcely be expected. It would be hard 
in principle and impossible in practice. ' ' Car- 
ried to its logical conclusion, the theory of an 
embargo would necessarily be extended to cover 
conditional contraband. As Secretary Seward 
told the Mexican Minister in 1862 : "If Mexico 
shall prescribe to us what merchandise we shall 
not sell to French subjects, because it may be 
employed in military operations against Mex- 
ico, France must equally be allowed to dictate 
to us what merchandise we shall allow to be 
shipped to Mexico, because it might be bel- 
ligerently used against France. Every other 
nation which is at war would have a similar 
right, and every other commercial nation would 
be bound to respect it as much as the United 
States. Commerce in that case, instead of be- 
ing free or independent, would exist only at the 
caprice of war." Such has been the consistent 
American position, grounded in law and 
strengthened by strong considerations of pol- 
icy, not only for the specific reasons enumerated 
by Mr. Seward, but for others that will be ad- 
verted to presently. 



120 AMEKICA'S CASE AGAINST GEKMANY 

Three incidents in the diplomatic history of 
the United States, however, have been made 
much of to justify the claim of those desiring 
an embargo, that such a measure would not be 
a departure from all precedent; that, in fact, 
the United States belongs to the company of 
belligerents, who, during almost every war, 
have entered protests against munitions being 
sent to their enemies by the citizens of a neutral 
nation. First of all, it is argued that the so- 
called French Arms debate in the United States 
Senate following the Franco-Prussian War 
showed that we had violated our duties as a 
neutral, and that the speech made upon this 
occasion by Carl Schurz was a protest against 
such conduct. But the question at issue in that 
debate was not, as the advocates of an embargo 
frequently allege, whether we had helped the 
French with arms and ammunition ; on the con- 
trary, it was whether the United States had 
been defrauded and officials had profited by the 
sale to France of arms owned but discarded 
by the United States Government. There are a 
good many ramifications to the incident, but it 
is clear that there is no parallel to present con- 



THE TKADE IN MUNITIONS OF WAR 121 

ditions. The War Department, moreover, when 
it learned the destination of the arms, offered 
Prussia the privilege of buying the same num- 
ber upon the same terms, but the proposal was 
declined, and Prussia added that she had no 
objection to the continuance of shipments to the 
French. The debate in the Senate was upon the 
responsibility for the sales and there was no 
mention of the condition which exists at pres- 
ent, namely, the transactions being conducted 
by private individuals who manufacture the 
munitions which they furnish. 

The second incident used to charge incon- 
sistency against the United States is that, dur- 
ing the Spanish- American War, the American 
Ajnbassador to Germany requested the German 
Government to take "vigorous steps" to pre- 
vent the shipment of even small arms from 
Germany to Spain. The citation was mentioned 
by Count Bernstorff when he gave out his mem- 
orandum of protest on April 4th, but that he 
attaches no great importance to the incident is 
shown by the fact that it does not figure in any 
of his official communications. Nevertheless, in 



122 AMERICA'S CASE AGAINST GERMANY 

garbled forms, and often twisted to the bare 
statement that the United States solemnly pro- 
tested, the story has been worked pretty hard. 
The facts have been made public by the Ameri- 
can State Department. 

"It appears," says the Department's account, "that 
on May 18, 1898, Ambassador Andrew D. White re- 
ceived a telephonic message from the American con- 
sul at Hamburg that the Spanish ship Pinzon would 
sail within an hour for Cardiff to take on a cargo of 
coal for a Spanish port; that a part of the message 
was indistinct, and that it could not be clearly un- 
derstood whether the ship was or was not liable to 
seizure on other grounds. The Ambassador, there- 
fore, not desiring to incur delay by asking explana- 
tions went immediately to the Foreign Office and 
asked for the arrest and search of the vessel, and it 
was promised that everything possible should be done. 

"On the next morning the Ambassador received a 
telegram from the American consul that the Pinzon 
when passing Cuxhaven the preceding night was 
searched for war contraband by order of the German 
Chancellor, but that nothing was found." 

If the matter had ended there, the United 
States could hardly have been accused of de- 
parting from its traditional and consistently 
adhered to policy of permitting the export of 



THE TEADB IN MUNITIONS OF WAE 123 

arms, and of not objecting to the same attitude 
on the part of foreign governments. But when 
news of the incident reached the State Depart- 
ment, Ambassador White was, on June 6, 1898, 
sent the following instruction: 

"In view of the reported action of the Imperial 
German Government in directing the search of the 
Pinzon for contraband of war, the Department de- 
sires to be advised whether there are any laws or 
regulations in force which forbid the shipment of 
contraband of war from Hamburg or any other Ger- 
man port. It is assumed that you can obtain such 
information without applying to the German Gov- 
ernment for it. It is important that if any such 
laws or regulations exist this Government and its 
agents may be informed of them, so as to avoid the 
embarrassments which might arise, if it should appear 
to protest on the general principles of international 
law against neutral governments allowing articles re- 
garded merely as contraband of war to be shipped 
from their ports.' ' 

In reply to this instruction, which was almost 
a reproof, Mr. White later informed the State 
Department that there were no laws on the 
subject; the German Government had issued no 
proclamation of neutrality, and the Reichstag 



124 AMERICA'S CASE AGAINST GERMANY 

had not discussed the subject of contraband 
since 1894. Comment of my own upon this 
incident would be useless? When the incom- 
plete account given by Mr. White in his Auto- 
biography (Chap. XVI, p. 168) is amplified by 
the facts of the State Department's memoran- 
dum, the United States is shown once more to 
have asserted its belief in the legality and policy 
of munition shipments by a neutral. 

More convincing, however, at least at first 
glance, is the precedent cited by the German 
Ambassador in his memorandum of April 4th — 
that the United States placed an embargo on 
the export of arms and munitions to Mexico. 
But the conditions which made such action 
seem advisable were entirely exceptional. The 
struggle in Mexico was between two civil fac- 
tions and menaced the peace of the United 
States. While the enforcement of an embargo 
could not of itself restore order, there was a 
reasonable hope that it would reduce the extent 
and duration of the conflict, and in any event, 
the policy of the measure must be considered 
in the light of the peculiar relations between 
the United States and Latin American coun- 



THE TKADE IN MUNITIONS OF WAR 125 

tries, and not as dictated, or even permitted, 
by the general principles of international law. 
In fact, the executive order of the President 
raising the embargo (issued on February 3, 
1914, when there was no likelihood that a Euro- 
pean War would soon present the question of 
restrictive measures) declared the original 
order to have been "a departure from the ac- 
cepted practice of neutrality. ' ' It is submitted, 
therefore, that even were conditions similar, 
this admission would prevent the Mexican pol- 
icy from being quoted as a binding precedent. 

Such, then, are the incidents in the diplomatic 
history of the United States that were used 
by those desiring an embargo ; and it is difficult 
to see how any conclusion can be reached, 
other than that the traditional attitude of the 
United States has been to permit its citizens 
freely to export arms and ammunition to one 
or all of the belligerents. President Wilson's 
reply to Count Bernstorff's memorandum was 
entirely appropriate from the standpoint of the 
consistent policy of the United States, her inter- 
ests, and the rules of international law. 

Germany's record of sales of munitions in 



126 AMERICA'S CASE AGAINST GERMANY 

previous wars, which she confessed but avoided 
as binding precedents in view of changed con- 
ditions, made it inadvisable for her to file any 
formal remonstrance and so this was left for 
the Austro-Hungarian Government which on 
June 29, 1915, sent the United States a protest 
against the continued trade in munitions. It 
was true, the note said, that under the Hague 
Conventions the traffic was legal, and that the 
rules of international law could not be altered 
during a war except when necessary for the 
protection of the rights of the neutral. But, 

" According to all authorities on international law 
who concern themselves more particularly with the 
question now under consideration, a neutral govern- 
ment may not permit traffic in contraband of war, 
to be carried on without hindrance when this traffic 
assumes such a form or such dimensions that the neu- 
trality of the nation becomes involved thereby.' ' 

And the suggestion was made that the United 
States might very well ' ' confront the opponents 
of Austria-Hungary and Germany with the pos- 
sibility of the prohibition of the exportation of 
foodstuffs and raw materials' ' in order to com- 
pel Great Britain to rescind her illegal meas- 



THE TEADE IN MUNITIONS OF WAR 127 

ures and to nullify "the wanton efforts of the 
enemies of Austria-Hungary and Germany to 
use hunger as an ally." 

Now, apart from the suggestion as to our 
controversy with Great Britain the only point 
of any importance in this communication is that 
which attempts — as Count BernstorfFs memo- 
randum did — to assert a quantitative norm as 
determining whether the munitions trade can 
go on in accordance with true neutrality. This 
distinction was supported by Bluntschli and one 
or two other German jurists; it has never re- 
ceived anything approaching general support, 
and has in fact received its strongest condem- 
nation from German writers on international 
law, the vast majority of whom, as Secretary 
Lansing pointed out in his reply to the Austro- 
Hungarian communication, pronounce the traf- 
fic unexceptionally legal. From the standpoint 
of accepted international rules, this criterion is 
novel ; from the standpoint of ethical obligation, 
it would be impossible of application. The 
magnitude of exports must depend on the size 
of the market, and this varies with the scope 
of the conflict and the preparation of the bel- 



128 AMEKICA'S CASE AGAINST GEKMANY 

ligerents. As a distinguished German jurist, 
Professor von Bar of Gottingen, has said: 

* ' If two states go to war with each other the world 
is not bound to suspend its customary pursuits in 
order to prevent one of the belligerents from deriv- 
ing an advantage or suffering a disadvantage in con- 
sequence of such trade. To hold the contrary is to 
assume that belligerents, as such, have a right to 
dominate the rest of the world. "What a belligerent 
has a right to expect is only that the relation be- 
tween his adversary and neutral states shall remain 
as they were before the war; consequently the sub- 
jects of neutral states may continue to maintain com- 
mercial relations as formerly, and if they manufac- 
ture arms and ammunition, and have, before the war, 
sold them to everybody, they may continue to do so 
after the outbreak of the war, even to belliger- 
ents. . . . 

''It is wrong, therefore, to denounce, as has often 
been done, the sale of arms by neutrals to belligerents, 
as a business which pollutes the hands and honor of 
neutral countries. This phrase has no more force 
than a tirade launched against a fire insurance com- 
pany on the ground that it is engaged in a miserable 
business which draws its profits from the misfortunes 
of others." 311 

8 aSee Garner, "The Sale and Exportation of Arms and 
Munitions of War to Belligerents, ' ' American Journal of 



THE TRADE IN MUNITIONS OF WAR 129 

This and other points of the Austro-Hun- 
garian memorandum were exceptionally well 
answered by Secretary Lansing's note sent on 
August 12th: 

"To this assertion of an obligation to change or 
modify the rules of international usage on account of 
* special conditions the Government of the United 
States cannot accede. The recognition of an obliga- 
tion of this sort, unknown to the international prac- 
tice of the past, would impose upon every neutral 
nation a duty to sit in judgment on the progress of 
a war and to restrict its commercial intercourse with 
a belligerent whose naval successes prevented the 
neutral from trade with the enemy. 

"The contention of the Imperial and Royal Gov- 
ernment appears to be that the advantages gained 
to a belligerent by its superiority on the sea should 
be equalized by the neutral powers by the estab- 
lishment of a system of nonintercourse with the vic- 
tor. The Imperial and Royal Government confines 
its comments to arms and ammunition, but, if the 
principle for which it contends is sound, it should 
apply with equal force to all articles of contraband. 
A belligerent controlling the high seas might possess 
an ample supply of arms and ammunition, but be in 
want of food and clothing. On the novel principle 

International Law, Vol. X, pp. 749, 755, and Proceedings of the 
American Society of International Law, Vol. X, pp. 18, 28. 



130 AMERICA'S CASE AGAINST GERMANY 

that equalization is a neutral duty, neutral nations 
would be obligated to place an embargo on such arti- 
cles because one of the belligerents could not obtain 
them through commercial intercourse. 

"But if this principle, so strongly urged by the 
Imperial and Royal Government, should be admitted 
to obtain by reason of the superiority of a belligerent 
at sea, ought it not to operate equally as to a bel- 
ligerent superior on land? Applying this theory of 
equalization, a belligerent who lacks the necessary 
munitions to contend successfully on land ought to 
be permitted to purchase them from neutrals, while 
a belligerent with an abundance of war stores or with 
the power to produce them should be debarred from 
such traffic. 

"Manifestly the idea of strict neutrality now ad- 
vanced by the Imperial and Royal Government would 
involve a neutral nation in a mass of perplexities 
which would obscure the whole field of international 
obligation, produce economic confusion and deprive 
all commerce and industry of legitimate fields of en- 
terprise, already heavily burdened by the unavoidable 
restrictions of war." 

Attention was called to the fact that Austria- 
Hungary and Germany, particularly the latter, 
had produced a great surplus of arms and 
ammunition which they sold to belligerents ; and 



THE TRADE IN MUNITIONS OF WAR 131 

they had not applied the principle now advo- 
cated. The quantities were small when com- 
pared to those of the present war, but the prin- 
ciples involved were the same. More than this, 
on grounds of policy the United States must 
continue to assert an unrestricted right to en- 
gage in an unrestricted trade in military sup- 
plies. 

"It has never been the policy of this country to 
maintain in time of peace a large military establish- 
ment or stores of arms and ammunition sufficient to 
repel invasion by a well-equipped and powerful 
enemy. It has desired to remain at peace with all 
nations and to avoid any appearance of menacing 
such peace by the threat of its armies and navies. 
In consequence of this standing policy the United 
States would, in the event of attack by a foreign 
power, be at the outset of the war seriously, if not 
fatally, embarrassed by the lack of arms and ammu- 
nition and by the means to produce them in sufficient 
quantities to supply the requirements of national de- 
fense. The United States has always depended upon 
the right and power to purchase arms and ammuni- 
tion from neutral nations in case of foreign attack. 
This right, which it claims for itself, it cannot deny 
to others. 

"A nation whose principle and policy it is to rely 



132 AMERICA'S CASE AGAINST GERMANY 

upon international obligations and international jus- 
tice to preserve its political and territorial integrity 
might become the prey of an aggressive nation whose 
policy and practice it is to increase its military 
strength during times of peace with the design of 
conquest, unless the nation attacked can, after war 
has been declared, go into the markets of the world 
and purchase the means to defend itself against the 
aggressor. 

4 ' The general adoption by the nations of the world 
of the theory that neutral powers ought to prohibit 
the sale of arms and ammunition to belligerents would 
compel every nation to have in readiness at all times 
sufficient munitions of war to meet any emergency 
which might arise and to erect and maintain estab- 
lishments for the manufacture of arms and ammuni- 
tion sufficient to supply the needs of its military and 
naval forces throughout the progress of a war. Mani- 
festly the application of this theory would result in 
every nation becoming an armed camp, ready to re- 
sist aggression, and tempted to employ force in as- 
serting its rights rather than appeal to reason and 
justice for the settlement of international disputes. ' ' 4 

Secretary Lansing's very able note covers 
practically all phases of the question, but atten- 
tion should be directed to the fact that, for any 

4 The Austro-Hungarian reply made on September 24th added 
nothing to the discussion. 



THE TEADE IN MUNITIONS OF WAR 133 

restrictive measure to accomplish its purpose it 
would have to cover, to some extent at least, 
materials used in making munitions, for in the 
shipment of these we have probably done the 
greatest harm to Germany. Any embargo 
would, of course, involve the danger that we 
would make ourselves liable for damage done 
as a result of exports which had taken place 
in violation of law. Applied only to munitions, 
the measure would impose a burden that would 
soon prove to be intolerable; ultimate as well 
as primary destination would have to be in- 
quired into unless the restriction was absolute, 
and even then a small army of officials would 
be required to make it effective. But where 
would the line be drawn? Would the embargo 
apply only to absolute contraband or to con- 
ditional as well? The practical difficulties 
would seem to be well nigh insurmountable. 
Food is even more essential to England than 
munitions; yet to supply this would not be 
deemed unneutral by any one. 

It is evident, therefore, that the refusal of 
the United States Government to restrict the 
trade in munitions was abundantly justified by 



134 AMERICA'S CASE AGAINST GERMANY 

its traditional practice; by its own interests 
which require that in order not to become an 
armed camp it be permitted, when a belligerent, 
to buy military stores from neutrals ; by definite 
provisions of international law, the change of 
which during the progress of a war so as to 
deprive one group of belligerents of the ad- 
vantages which they have derived through su- 
perior sea-power would be unneutral; by the 
difficulty of drawing any logical line, and the 
impossibility and danger of enforcing a re- 
strictive measure. 

A rule of international law and a very gen- 
eral practice sanctioned by the vast majority 
of authorities, must, it is submitted, have some 
ethical justification. That the shipments of war 
materials from the United States have been suf- 
ficiently large to play any decisive part in the 
European struggle, is, I think, extremely doubt- 
ful. But, assume that this country, through the 
trade of its citizens, is actually taking part in 
the war. Here again our legal position would 
be impeccable, and our moral position also, for, 
in the last analysis, the question would be an- 
swered by our sympathies. At the time Ger- 



THE TEADE IN MUNITIONS OF WAR 135 

many invaded Belgium, the United States en- 
tered no formal protest, but its citizens pro- 
tested then, and their condemnation of Ger- 
many has ever been more bitter — augmented by 
the Lusitania and other outrages, the many 
atrocities alleged, diplomatic arrogance, and in- 
sidious propaganda. Above all considerations 
of the legality of restriction the United States 
would be unwilling, through an embargo, to 
assist Germany to a successful outcome of her 
conspiracy against the peace of the world. 
This, after all, is a very potent issue, and 
American public opinion would suffer no re- 
fusal to continue a policy that is legal, whose 
disregard would be unfriendly, and that, per- 
sisted in, would aid in some small measure those 
noble peoples (now our Allies) who were fight- 
ing for a better civilization. 

This discussion of the trade in war materials 
has been ventured in order to make more com- 
plete the sketch of the diplomatic exchanges 
between the United States and Germany during 
the present war. But, as I have already indi- 
cated, the munitions trade was bound up in the 



136 AMERICA'S CASE AGAINST GERMANY 

German notes with the submarine warfare. 
There is no logical connection, for, while a neu- 
tral government may not itself furnish supplies 
to a belligerent, individuals may engage in such 
a trade at their own risk. That is to say, the 
contraband articles which are shipped, and the 
vessels which carry them are liable to capture 
and confiscation. This is the sole penalty which 
international law attempts to impose upon a 
trade in contraband. The character of a ves- 
sel's cargo does not, therefore, furnish any jus- 
tification for a change in the rule. Those en- 
gaged in carrying the contraband cannot be 
punished ; if neutrals, they cannot even be made 
prisoners of war. The sole penalty, to repeat, 
is the loss by the owners of the cargo and of 
the vessel. It is thus seen that it is absolutely 
immaterial what a particular vessel contains 
when it is overtaken by a submarine. The sa- 
cred immunities of the noncombatants on board 
are the same, and the taking of their lives can- 
not be justified on the ground that they are 
engaged in a traffic, which, however objection- 
able to one of the belligerents, is recognized 
by international law. And, in fact, while jus- 



THE TEADE IN MUNITIONS OF WAR 137 

tifying her submarine warfare on the ground 
that it was a reprisal for the illegal British 
Orders in Council, Germany has not claimed 
that rules of international law and considera- 
tions of humanity give her any greater license 
with regard to the crew or passengers on con- 
traband-carrying boats. The justice of the 
trade in munitions seems, on the contrary, to 
have been injected into the diplomatic ex- 
changes for the same reason that the protest 
against the use of the neutral flag was made — 
to attempt to coerce the United States into a 
position which would illegally operate to the 
detriment of the Allies, with the alternative, for 
refusal, of an inhuman and illegal disregard 
for the lives of all noncombatants — neutral as 
well as enemy — on the high seas. 5 

6 Although it does not seem to have figured in the exchanges, 
attention may be called to the fact that the Prussian treaties 
(see above, p. 62) expressly justify a trade in contraband by 
one of the parties when the other is a belligerent. These 
treaties have been accepted by Germany as fully binding. 



CHAPTER VII 

SUBMAEINE WAKFAKE IN THE MEDITERRANEAN 

The German pledges which have been de- 
scribed came simultaneously with a marked de- 
crease of the activity of submarines in the wa- 
ters around Great Britain ; and the opinion has 
already been ventured that perhaps so many 
had been destroyed that it seemed to the Im- 
perial Government the best plan to accede to the 
American demands pending the completion of 
the many and more powerful undersea boats 
which were contemplated. In the Mediterra- 
nean, however, a new campaign was inaugu- 
rated, apparently participated in by both Ger- 
man and Austrian submarines. American in- 
terests were vitally affected when the Italian 
liner Ancona, bound from Naples to New York, 
was sunk in the Mediterranean without warning 
(November 7th) and more than two hundred 
passengers lost their lives, among them Ameri- 

138 



SUBMARINES IN MEDITERRANEAN 139 

can citizens. After a month's delay in order 
to be sure of the facts, President Wilson ad- 
dressed a note — in some respects the strongest 
of those published — to the Austro-Hungarian 
Government. He said: 

"The Government of the United States considers 
that the commander violated the principles of inter- 
national law and of humanity by shelling and torpe- 
doing the Ancana before the persons on board had 
been put in a place of safety or even given sufficient 
time to leave the vessel. The conduct of the com- 
mander can only be characterized as wanton slaugh- 
ter of defenseless noncombatants, since at the time 
when the vessel was shelled and torpedoed she was 
not, it appears, resisting or attempting to escape ; and 
no other reason is sufficient to excuse such an attack, 
not even the possibility of rescue.' ' 

The United States, therefore, was forced to 
conclude either that the commander of the sub- 
marine failed to act in accordance with his in- 
structions or that Austria-Hungary had not 
issued to its under-sea boats the same orders 
that had been announced by Germany "in ac- 
cordance with the law of nations and the prin- 
ciples of humanity. ,, This latter alternative the 



140 AMEKICA'S CASE AGAINST GEKMANY 

United States was reluctant to believe for it 
would have 

"to credit the Austro-Hungarian Government with 
an intention to permit its submarines to destroy the 
lives of helpless men, women, and children. It pre- 
fers to believe that the commander of the submarine 
committed this outrage without authority and con- 
trary to the general or special instructions which he 
had received. 

"As the good relations of the two countries must 
rest upon a common regard for law and humanity, the 
Government of the United States cannot be expected 
to do otherwise than to demand that the Imperial and 
Eoyal Government denounce the sinking of the An- 
cona as an illegal and indefensible act; that the offi- 
cer who perpetrated the deed be punished ; and that 
reparation by the payment of an indemnity be made 
for the citizens of the United States who were killed 
or injured by the attack on the vessel. 

"The Government of the United States expects that 
the Austro-Hungarian Government, appreciating the 
gravity of the case, will accede to its demand 
promptly; and it rests this expectation on the belief 
that the Austro-Hungarian Government will not 
sanction or defend an act which is condemned by the 
world as inhumane and barbarous, which is abhorrent 
to all civilized nations, and which has caused the 
death of innocent American citizens." 



SUBMARINES IN MEDITERRANEAN 141 

These were strong words and indicated that 
the United States was tired of temporizing; 
that the submarines must conduct their opera- 
tions so as to safeguard the lives of noncom- 
batants, with the alternative of having diplo- 
matic relations severed. 

Austria's reply, made on December 15th, was 
a very evasive and in some respects impertinent 
document. It said that the "sharpness with 
which the Government of the United States con- 
siders it necessary to blame the commanding 
officer of the submarine " was not justified by 
any specification of the exact circumstances of 
the sinking; that the number, names, and fate 
of the American citizens on board were not 
enumerated; that no juridical reasons for the 
demands were given but in lieu thereof the cor- 
respondence with Germany was referred to, and 
Austria-Hungary had no authentic knowledge 
of all the pertinent communications; and that 
the Dual Monarchy "must, in order to preclude 
possible misunderstandings, declare that as a 
matter of course it reserves to itself full free- 
dom of maintaining its own legal views in the 
discussion of the case of the Ancona." Aus- 



142 AMERICA'S CASE AGAINST GERMANY 

tria-Hungary, the note concluded, "in no less 
degree than the American Government and un- 
der all circumstances sincerely deplores the fate 
of the innocent victims of the incident in ques- 
tion." 

The American demands were repeated imme- 
diately. They quoted the Austro-Hungarian 
Charge d' Affaires at Washington as communi- 
cating to the Department of State subsequent 
to the sinking, an admiralty report in which it 
was admitted that the vessel had been sunk 
while her engines were stopped and passengers 
were still on board. 

"This admission alone is, in the view of the Gov- 
ernment of the United States, sufficient to fix upon 
the commander of the submarine which fired the tor- 
pedo the responsibility for having willfully violated 
the recognized law of nations and entirely disregarded 
those humane principles which every belligerent 
should observe in the conduct of war at sea. In 
view of these admitted circumstances the Government 
of the United States feels justified in holding that 
the details of the sinking of the Ancona, the weight 
and character of the additional testimony corroborat- 
ing the Admiralty '& report, and the number of Amer- 
icans killed or injured are in no way essential mat- 



SUBMARINES IN MEDITERRANEAN 143' 

ters of discussion. The culpability of the commander 
is in any case established, and the undisputed fact 
is that citizens of the United States were killed, in- 
jured, or put in jeopardy by his lawless act. 

"The rules of international law and the principles 
of humanity which were thus willfully violated by 
the commander of the submarine have been so long 
and so universally recognized and are so manifest 
from the standpoint of right and justice that the 
Government of the United States does not feel called 
upon to debate them and does not understand that 
the Imperial and Royal Government questions or 
disputes them. ,, 

To the United States, therefore, the only 
course open was to hold the Imperial and Royal 
Government responsible for the act of its com- 
mander and to renew the demands of the pre- 
vious communication. The seriousness of the 
incident and the necessity for compliance were 
again intimated in the concluding warning that 
the United States "sincerely hopes that the 
foregoing statement of its position will enable 
the Imperial and Royal Government to perceive 
the justice of those demands and to comply with 
them in the same spirit of frankness and with 
the same concern for the good relations now 



144 AMEKICA'S CASE AGAINST GEKMANY 

existing between the United States and Austria- 
Hungary which prompted the Government of 
the United States to make them." 

In response to this (December 29th), Austria- 
Hungary expressed itself in thorough agree- 
ment with the Washington cabinet "that even 
in war the sacred demands of humanity must 
be complied with." And agreement was ex- 
pressed also with the principle "that hostile 
private ships, in so far as they do not flee or 
offer resistance, may not be destroyed without 
the persons on board having been placed in 
safety. ' ' This was an important admission and 
conceded practically everything that the United 
States was contending for. The note then went 
on to outline the evidence secured by an investi- 
gation and to discuss the circumstances of at- 
tack — in contradiction of the American view as 
to the damage done after the Ancona had 
stopped — and the responsibility for the loss of 
life. While the vessel was torpedoed after it 
had ceased the attempt to get away, the Im- 
perial and Eoyal Government asserted that in- 
expert launching of the lifeboats and failure of 



SUBMAEINES IN MEDITERKANEAN 145 

the crew to put the passengers in a place of 
safety were responsible. 

The officer in command of the submarine had 
been "punished in accordance with the rules in 
force in this matter for exceeding his instruc- 
tions/ ' and while the case of the Ancona could 
be regarded as having been cleared up, the 
Imperial and Koyal Government reserved "to 
itself for a future time the discussion of the 
difficult questions of international law in con- 
nection witn submarine warfare. ' ' l 

1 In respect to the indemnity to American citizens, the fol- 
lowing observations were offered: "Asa matter of course the 
investigation into the sinking of the Ancona could not estab- 
lish to what degree American citizens are entitled to a claim 
for indemnity. Even according to the view of the Washington 
Cabinet, the Imperial and Royal Government can not be held 
answerable for the injuries which were caused by the undoubt- 
edly justified firing upon the fleeing ship. Just as little might 
it have to answer for the injuries which occurred before the 
torpedoing due to the faulty rigging out of the boats or to the 
capsizing of the boats which had been lowered. 

"The Imperial and Eoyal Government must assume that the 
Washington Cabinet is able and willing to furnish it with the 
information which is required in this respect and which is cer- 
tainly not immaterial. However, should the more precise cir- 
cumstances under which the American citizens were injured be 
unknown to the Government of the United States due to a 
lack of the proper material evidence, the Government of the 
Imperial and Royal Government in consideration of the hu- 
manely deeply deplorable incident, and guided by the desire 



146 AMERICA'S CASE AGAINST GERMANY 

This reply was encouraging, but the satisfac- 
tion was short-lived 2 for almost immediately 
word was received of the sinking of the Penin- 
sular & Oriental liner Persia off the coast of 
Crete on December 30th. More than two hun- 
dred noncombatants lost their lives, among 
them an American consul. Secretary Lansing 
at once instructed the American ambassadors 
at Berlin and Vienna to make informal in- 
quiries looking to the nationality of the sub- 
marine responsible. The facts are not yet clear 

of again manifesting to the Government of the United States 
its friendly sentiments, would be readily willing to overlook 
this gap in the evidence and to extend the indemnity also to 
those injuries the direct cause of which could not be ascer- 
tained. ' ' 

2 On December 5, 1915, the American ship Petrolite had been 
shelled by a submarine and compelled to furnish it supplies. 
The commander of the submarine explained the firing on 
the ground that he thought that the American flag was a ruse 
de guerre and that the vessel was attempting to ram him. 
Negotiations dragged and on July 21, 1916, in the last pub- 
lished communication to Austria-Hungary, Secretary of State 
Lansing denounced ' ' the conduct of the commander of the sub- 
marine in attacking the Petrolite and in coercing the captain as 
a deliberate insult to the flag of the United States and an in- 
vasion of the rights of American citizens for which this Gov- 
ernment requests that an apology be made; that the com- 
mander of the submarine be punished; and that reparation be 
made for the injuries sustained by the payment of a suitable 
indemnity. ' ' 



SUBMAKINES IN MEDITEEEANEAN 147 

as Germany, Austria-Hungary, and Turkey 
have all denied that one of their submarines 
sank the vessel, but it is certain that the force- 
ful language of the United States had but slight 
effect since two other passenger steamers were 
sunk without warning in the Mediterranean — 
the Japanese liner Yasaka Maru on December 
21st and the French liner Ville de la Ciotat on 
December 24th. 

But Ambassador Bernstorfr again came to 
the fore on January 7th with renewed pledges : 

"1. German submarines in the Mediterranean had, 
from the beginning, orders to conduct cruiser warfare 
against enemy merchant vessels only in accordance 
with general principles of international law, and in 
particular measures of reprisal, as applied in the war 
zone around the British Isles, were to be excluded. 

"2. German submarines are therefore permitted to 
destroy enemy merchant vessels in the Mediterranean 
— i. e., passenger as well as freight ships as far as 
they do not try to escape or offer resistance — only 
after passengers and crews have been accorded safety. 

"3. All cases of destruction of enemy merchant 
ships in the Mediterranean in which German subma- 
rines are concerned are made the subject of official 
investigation and, besides, submitted to regular prize 



148 AMEEICA'S CASE AGAINST GERMANY 

court proceedings. In so far as American interests 
are concerned, the German Government will com- 
municate the result to the American Government. 
Thus also in the Persia case if the circumstances 
should call for it. 

"4. If commanders of German submarines should 
not have obeyed the orders given to them, they will 
be punished; furthermore, the German Government 
will make reparation for damage caused by death of 
or injuries to American citizens." 3 

These pledges were of course tantamount to 
further admissions that the submarine cam- 
paign was illegal; but Count BernstorrT's prom- 
ise in settlement of the Arabic incident was, in 
the immunity given "liners," not limited to 
locality and read in connection with the asser- 
tions of the German note of May 4th, replying 
to our ultimatum in the Sussex case, cast doubt 
on the bona fides of all the pledges. In this 
communication — which will be treated more in 
detail later — Germany said that no assurances 
had been given the United States concerning 
the warfare against enemy trade in enemy ves- 

8 At the time these pledges were made, Secretary Lansing 
published the note of November 29, 1915 concerning the Frye 
case and defining the measure of safety to be accorded those on 
vessels that were to be sunk. See above, p. 106. 



SUBMARINES IN MEDITERRANEAN" 149 

sels — yet the note of September 1st in promis- 
ing that " liners" would not be sunk without 
warning surely was calculated to convey a con- 
trary impression to the American people. But 
before this open avowal of May 4th, the local- 
ity mentioned in this pledge of January 7th was 
sufficient to cause many doubts to be cast upon 
the sincerity of the German undertakings. 

Nevertheless, the "conversations" between 
Secretary Lansing and Count Bernstorff over 
the Lusitania continued, and there were pro- 
longed negotiations during which, it was re- 
ported, diplomatic relations were several times 
on the point of being broken off because Ger- 
many refused to admit that her act was unjus- 
tifiable. The exact terms of the settlement have 
not been made public, but their general nature 
has been the subject of apparently inspired 
newspaper reports. Germany, in view of the 
fact that, contrary to her own interpretation of 
international law, the United States did not con- 
sider reprisals legal, admitted that the attack 
on the Lusitania was unjustifiable so far as it 
involved the lives of neutrals, agreed to pay an 
indemnity for the American lives lost "as an 



150 AMEKICA'S CASE AGAINST GEKMANY 

act of liability, ' ' and promised that the outrage 
would not be repeated. 4 

But on February 8th, while the negotiations 
neared a conclusion, Germany announced a new 
policy toward armed merchantmen which wiped 
out her repeated pledges, vitiated the Lusitania 
agreement, and reopened the whole submarine 
controversy. For the attitude of the United 
States was that in sinking the Lusitania Ger- 
many had committed a hostile act which would 
have to be disavowed with offers of reparation 
in order that diplomatic relations might con- 
tinue between the two powers, and pending any 
attitude on Germany's part other than an inten- 
tion to abide by her pledges, the settlement 
would not be proceeded with. 

Before considering the question of armed 
merchantmen, which in some respects raises 
more difficult points of international law than 
any other phase of the controversy, it may be 
well to enumerate briefly once more just what 
concessions the United States had thus far se- 

4 The last point of difference was as to whether Germany 
would "assume" or "admit" liability and the latter word 
was assented to by Berlin on February 15th. 



SUBMAKINES IN MEDITEKKANEAN 151 

cured. Austria-Hungary had in general agreed 
to abide by existing international rules — al- 
though contrary to the demands of the first 
Lusitania note submarines could be used 
against merchant ships if the safety of those 
on board was assured — and this pledge was 
joined in by Germany so far as the Mediterra- 
nean operations were concerned. 5 In the so- 
called war zone around the British Isles the 
pledges were limited only to "liners" that did 
not attempt to escape, and while the right of 
American vessels to traverse this war zone was 
apparently admitted, Germany did not consider 
"unfortunate accidents" in sinking them illegal 
but simply as imposing liability on her under 

6 One other incident caused further exchanges between the 
United States and Austria-Hungary. On April 11, 1916, the 
Eussian bark Imperator was destroyed by an Austrian sub- 
marine in the Mediterranean and an American citizen was 
wounded. It was explained that after the vessel had been 
warned by a shot across her bows, no disposition was shown on 
the part of the crew to abandon her. A second shot was fired 
through the rigging. The crew then embarked in boats, and 
of two sailors who had been wounded, neither was an American 
citizen. According to the ship's papers there was only one 
American citizen on board, and if, "to the regret of the 
Austro-Hungarian authorities," he was wounded, the explana- 
tion was that ' ■ the bark failed to comply with the submarine 's 
challenge to stop when ordered. " 



152 AMERICA'S CASE AGAINST GERMANY 

the old Prussian treaties. Finally, the measure 
of safety to be accorded was but poorly defined. 
Nevertheless, while relinquishing the interna- 
tional spirit of the first Lusitania note that sub- 
marines were not adapted for cruiser warfare 
on commerce, the United States had conceded 
none of its neutral rights. But all these ques- 
tions were again opened, with the position of 
the United States more assailable, by the an- 
nouncement that after March 1st all armed pri- 
vate ships would be sunk without warning. 



CHAPTEE VIII 



AEMED MERCHANTMEN 



At the outbreak of the war the American De- 
partment of State had very definitely passed 
upon the question of armed merchantmen. The 
British Embassy at Washington informed the 
Secretary of State that a certain number of 
merchantmen had been armed, but solely for 
defense, and that since the British naval regu- 
lations did not permit the conversion of mer- 
chantmen into warships on the high seas or in 
neutral ports, these armed merchantmen did 
not have even a potential combatant status. 
These communications were merely acknowl- 
edged, but on September 19, 1914, the Depart- 
ment of State issued a comprehensive memo- 
randum defining the status of merchant ships 
carrying guns. 

The memorandum stated that a merchant ves- 
sel of belligerent nationality might carry an 

153 



154 AMEKICA'S CASE AGAINST GEKMANY 

armament for the sole purpose of defense with- 
out acquiring the character of a ship of war, 
but that the presence on board of an arma- 
ment created a presumption that it was for 
offensive purposes. This might be rebutted by 
suitable proof that the number of guns was 
small and that their caliber did not exceed six 
inches ; that they were not mounted on the for- 
ward part of the vessel; that the quantity of 
ammunition was small; that the ship carried 
only its usual crew ; that the purpose to engage 
in trade, as before the outbreak of war, was 
clearly evident, only sufficient fuel for this pur- 
pose being carried; that the cargo was not 
suited for a vessel engaging in hostile opera- 
tions; that passengers were carried, and that 
the speed of the ship was slow. 

Against this ruling Germany protested on 
the ground that it failed "to comply with the 
principles of neutrality. This equipment of 
British merchant vessels with artillery is for 
the purpose of making armed resistance against 
German cruisers. Eesistance of this sort is con- 
trary to international law, because, in a military 
sense, a merchant vessel is not permitted to de- 



AEMED MERCHANTMEN 155 

fend itself against a war vessel. ' ' This protest 
was received on October 15th and the reply of 
the United States was made on November 7th. 
It said that "the practice of a majority of na- 
tions and the consensus of opinion by the lead- 
ing authorities on international law, including 
many German writers, support the proposition 
that merchant vessels may arm for defense 
without losing their private character, and that 
they may employ such armament against hostile 
attack without contravening the principles of 
international law." 

Now, this was a vigorous and exact state- 
ment of the accepted international law of the 
question. Chief Justice Marshall in the famous 
case of the Nereide had decided that a bellig- 
erent vessel had a perfect right to arm in self- 
defense and that a neutral had a right to trans- 
port his goods in such an armed vessel. The 
armed vessel in this case "had a right to defend 
herself, did defend herself, and might have cap- 
tured an assailing vessel ; but to search for the 
enemy would have been a violation of her char- 
ter party and of her duty." 

The practice of arming ships in self-defense 



156 AMERICA'S CASE AGAINST GERMANY 

is a very old one, and dates from the time when 
the seas were infested by pirates. "With the 
disappearance of pirates and the abolition by 
the Declaration of Paris (1856) of privateering, 
the necessity of ships arming to defend them- 
selves was diminished, because against a mod- 
ern cruiser a defensively armed merchantman 
would be almost impotent. But at the Second 
Hague Peace Conference a convention was 
adopted providing for the conversion of mer- 
chant vessels into war ships and against these 
a defensively armed merchant vessel would 
have the same chance of escape that it formerly 
had against a privateer or a pirate. A reason 
for the armament therefore came into existence 
at the Second Hague Peace Conference, and in 
March, 1913, it was announced that British mer- 
chant vessels were to be defensively armed. 
That this was perfectly legal was recognized, 
as I have said, by established practice, the 
United States Supreme Court, a Hague Con- 
vention, and the publicists of Great Britain, the 
United States, France, Italy, Belgium, and 
Holland. The consensus of international opin- 
ion was in its favor, as correctly stated by the 



AEMED MEECHANTMEN 157 

memorandum of the United States in reply to 
the German protest. 

Furthermore, in 1913, the Institute of Inter- 
national Law at its Oxford meeting in Article 12 
of the "Manuel des Lois de la Guerre Mari- 
time" said that the use of force against the 
attack of a naval enemy was permissible. This 
view was combated by one of the German rep- 
resentatives but was adopted by a large ma- 
jority. Some German opinion, however, has 
been opposed to the rule, but as a leading 
authority on the subject points out: 

"The right of a merchant ship to defend herself, 
and to be armed for that purpose, has not, so far 
as I am aware, been doubted for two centuries, until 
the question has again become one of practical im- 
portance. The historical evidence of the practice 
down to the year 1815 is overwhelming. Dr. Schramm 
[a German writer], in his elaborate denial of the 
right, fails to distinguish between the position in 
which a belligerent warship stands to an enemy mer- 
chant ship, and that in which it stands to a neutral 
merchant ship. This failure is important, and goes 
to the root of the matter, for whereas the visit of a 
belligerent warship to an enemy merchant ship is, 
under existing law, merely the first step to capture 
and is itself a hostile act, and is undertaken solely 



158 AMEKICA'S CASE AGAINST GEKMANY 

in order to enable the captor to ascertain that the 
ship is one which is not exempt by custom, treaty or 
convention from capture ; the visit to a neutral ship, 
though justified by the fact of the existence of war, 
is not a hostile act. By long custom a belligerent 
warship has a right of visit and search of all neutral 
merchant vessels, and this right is exercised in order 
to ascertain whether a vessel is in fact neutral, and 
not engaged in any acts such as attempting to break 
blockade, the carriage of contraband or the perform- 
ance of any unneutral service which would justify 
its detention and condemnation. 'It has been truly 
denominated a right growing out of, and ancillary to 
the greater right of capture. Where this greater 
right may be legally exercised without search [as in 
the case of enemy ships] the right of search can never 
arise or come into question.' A belligerent warship 
has a right to capture an enemy merchant ship, and 
the latter is under no duty to submit; it has a cor- 
responding right to resist capture, which is an act 
of violence and hostility. By resisting, the belligerent 
violates no duty, he is held by force and may escape 
if he can. But forcible resistance, as distinct from 
flight, on the part of a neutral merchant ship is uni- 
versally admitted as a just ground for the condem- 
nation of the ship. ' ' x 

1 Higgins, " Armed Merchant Ships, " American Journal of 
International Law, Vol. 8, p. 705. The quotation is from Chief 
Justice Marshall in the Nereide, 9 Cranch, 338 (1815). 



ARMED MERCHANTMEN 159 

In addition, the crews of vessels which re- 
sist capture become prisoners of war; the re- 
sisting vessel, according to the Anglo-American 
doctrine, can make a lawful prize of the vessel 
which attacks it. ' ' The crew of a merchant ship 
is a body of men acting together in defense of 
their ship and their liberty, a body of indi- 
viduals who by the customary law of nations 
have received combatant privileges when resist- 
ing capture by an enemy warship. They ofTer 
a striking analogy to the spontaneous rising of 
the inhabitants of an occupied territory, who 
have now received by convention the right 
which merchant sailors have had for cen- 
turies." 2 

Now the mere fact that a merchant vessel 
may resist capture, does not, of course, permit 
the capturing vessel to sink it without warning. 
The provisions of international law are definite 
on this point. If resistance takes place, suffi- 
cient force can be used to overcome this resist- 
ance, but to the merchant vessel is given the 
option of deciding whether it will submit at 

'Higgins, op. cit., and Hague Convention (IV, 1907) Re- 
specting the Laws and Customs of War on Land. 



160 AMERICA'S CASE AGAINST GERMANY 

once, attempt to flee, or resist, and the vessel 
desiring to make the capture must await the 
exercise of this option before it uses force. 
Passengers on a defensively armed merchant 
vessel are protected until the resistance takes 
place ; then the responsibility is on the captain 
of the merchant vessel if the exercise of force 
by the capturing vessel, conceding that this 
force is no more than is necessary to overcome 
the resistance, causes injury to the passengers. 
And the mere fact that a submarine may be 
sunk by one shot does not furnish any basis 
for a change in the rule. It is one of the haz- 
ards of submarine activity against commerce 
that resistance may be immediately and com- 
pletely effective. 

With Mr. Lansing's reply of November 7, 
1914, the question of armed merchantman 
rested for some time. In the communications 
over the war zone and the Lusitania, Germany 
claimed that armed merchantmen could not be 
considered undefended territory, and that she 
was, therefore, justified in sinking them with- 
out warning. One of her excuses for sinking 
the Lusitania was that the ship carried an 



AEMED MERCHANTMEN 161 

armament, but in its replies, the United States 
did not attempt to controvert this view of the 
obligations on the submarine, but contented it- 
self with pointing out that the Lusitania was 
in fact unarmed. 

In the early part of 1916, however, the whole 
question was raised again. Italian and British 
ships were armed on account of the ruthless 
submarine campaign which was being waged in 
the Mediterranean. The hint was given that 
Germany intended to sink all armed merchant- 
men without warning, and so on January 18, 
1916, Secretary of State Lansing issued a truly 
remarkable document which was designed to 
obviate this threat to the lives and interests of 
American citizens on board of vessels which 
might carry an armament. He proposed that 
the practice of arming merchant vessels be abol- 
ished, and while he had himself signed the note 
of November 7th which upheld the right of a 
merchantman to resist capture, he now declared 
that "an enemy merchant vessel when ordered 
to do so by a belligerent submarine should im- 
mediately stop." The memorandum concluded 
with this statement: 



162 AMERICA'S CASE AGAINST GERMANY 

"I should add that my Government is impressed 
with the reasonableness of the argument that a mer- 
chant vessel carrying armament of any sort, in view 
of the character of the submarine warfare and the 
defensive weakness of underseas craft, should be held 
to be an auxiliary cruiser and so treated by a neutral 
as well as by a belligerent Government, and is seri- 
ously considering instructing its officials accordingly. ' ' 

Now, this proposal was of course unanimously 
declined by the Entente Allies. Figures an- 
nounced much later by the British Admiralty 
showed that more than seventy-five per cent, of 
all armed vessels escaped destruction by subma- 
rines, while of the unarmed ones only twenty- 
four per cent, escaped when attacked. The 
acceptance of Mr. Lansing's suggestion would 
have meant that the Entente Powers volun- 
tarily permit a much larger proportion of their 
shipping to be sunk, with the saving of more 
lives perhaps, but with license on the part of 
Germany to plead in any case that destruction 
without warning was justified because of the 
presence of a gun or a threatened attack. The 
effectiveness of submarines against commerce 
— a use which had been objected to by the 



ARMED MERCHANTMEN 163 

United States in its early Lusitania exchanges 
■ — would be immeasurably increased. 

Germany, however, took advantage of the 
proposals thus made by Secretary Lansing, 
and on February 11, 1916, announced that after 
March 1st all armed merchantmen would be 
sunk without warning. The diplomatic position 
of the United States had been weakened and 
discussion of the matter began in Congress 
where a resolution was introduced warning 
Americans to keep off armed merchant ships 
of belligerent nationality. With apparently a 
majority in each House favoring its passage, 
the Administration interfered. Secretary Lan- 
sing's note had been merely a proposal for a 
modus vivendi like the suggestions made to 
England and Germany in the early days of the 
war zone; when rejected by one group of bel- 
ligerents, it could not be put into operation by 
the other group nor could any advantage be de- 
rived from its having been made. President 
Wilson wrote (February 24th) Senator Stone 
that the duty of the country was clear : 

"No nation, no group of nations, has the right 
while war is in progress to alter or disregard the 



164 AMEKICA'S CASE AGAINST GEKMANY 

principles which all nations have agreed upon in miti- 
gation of the horrors and sufferings of war, and if 
the clear rights of American citizens should ever un- 
happily be abridged or denied by any such action 
we should, it seems to me, have in honor no choice as 
to what our own course should be. 

"For my own part, I cannot consent to any 
abridgement of the rights of American citizens in 
any respect. The honor and self-respect of the nation 
are involved. We covet peace and shall preserve it 
at any cost but the loss of honor. To forbid our 
people to exercise their rights for fear we might be 
called upon to vindicate them would be a deep hu- 
miliation indeed. It would be an implicit, all but an 
explicit, acquiescence in the violation of the rights 
of mankind everywhere and of whatever nation or 
allegiance. It would be a deliberate abdication of our 
hitherto proud position as spokesmen, even amidst 
the turmoil of war, for the law and the right. It 
would make everything this Government has at- 
tempted and everything that it has achieved during 
this terrible struggle of nations meaningless and 
futile. 

"It is important to reflect that if in this instance 
we allowed expediency to take the place of principle, 
the door would inevitably be opened to still further 
concessions. Once accept a single abatement of right 
and many other humiliations would certainly follow, 
and the whole fine fabric of international law might 



ARMED MERCHANTMEN 165 

crumble under our hands piece by piece. What We 
are contending for in this matter is of the very es 
sence of the things that have made America a sov- 
ereign nation. She cannot yield them without conced- 
ing her own impotency as a nation and making 
virtual surrender of her independent position among 
the nations of the world." 

This letter had its effect and the resolution was 
tabled. 

Meanwhile there was much uncertainty, as 
the position of the Administration was not defi- 
nitely announced until April 26th, when there 
was published a memorandum dated March 25th 
which set forth in a comprehensive fashion the 
views of the United States as to armed mer- 
chantmen. Following are the pertinent para- 
graphs with reference to the duties of a bel- 
ligerent cruiser or submarine upon overtaking 
a defensively armed vessel: 

"(7) When a belligerent warship meets a mer- 
chantman on the high seas, which is known to be 
enemy owned, and attempts to capture the vessel, 
the latter may exercise its right of self-protection 
either by flight or by resistance. The right to capture 
and the right to prevent capture are recognized as 
equally justifiable. 



166 AMERICA'S CASE AGAINST GERMANY 

" (8) The exercise of the right of capture is lim- 
ited, nevertheless, by certain accepted rules of con- 
duct based on the principles of humanity and regard 
for innocent property, even if there is definite knowl- 
edge that some of the property, cargo, as well as the 
vessel, is of enemy character. As a consequence of 
these limitations, it has become the established prac- 
tice for warships to give merchant vessels an- oppor- 
tunity to surrender or submit to visit and search be- 
fore attempting to seize them by force. The observ- 
ance of this rule of naval warfare tends to prevent 
the loss of life of noncombatants and the destruc- 
tion of innocent neutral property, which would result 
from sudden attack. 

"(9) If, however, before a summons to surrender 
is given, a merchantman of belligerent nationality, 
aware of the approach of an enemy warship, uses its 
armament to keep the enemy at a distance, or after 
it has been summoned to surrender it resists or flees, 
the warship may properly exercise force to compel 
surrender. 

''(10) If the merchantman finally surrenders, the 
belligerent warship may release it or take it into cus- 
tody. In the case of an enemy merchantman it may 
be sunk, but only if it is impossible to take it into 
port, and provided always that the persons on board 
are put in a place of safety. In the case of neutral 
merchantman, the right to sink it in any circumstance 
is doubtful. 



AEMED MERCHANTMEN 167 

" (11) A merchantman entitled to exercise the right 
of self -protection may do so when certain of attack 
hy an enemy warship, otherwise the exercise of the 
right would be so restricted as to render it ineffectual. 
There is a distinct difference, however, between the 
exercise of the right of self-protection and the act 
of cruising the seas in an armed vessel for the pur- 
pose of attacking enemy naval vessels. 

"(12) In the event that merchant ships of bel- 
ligerent nationality are armed and under commission 
or orders to attack in all circumstances certain classes 
of enemy naval vessels for the purpose of destroying 
them, and are entitled to receive prize money for 
such service from their Government, or are liable to 
a penalty for failure to obey the orders given, such 
merchant ships lose their status as peaceable merchant 
ships and are to a limited extent incorporated in the 
naval forces of their Government, even though it is 
not their sole occupation to conduct hostile opera- 
tions. 

" (13) A vessel engaged intermittently in commerce 
and under a commission or orders of its Government 
imposing a penalty, in pursuing and attacking enemy 
naval craft, possesses a status tainted with a hostile 
purpose which it can not throw aside or assume at 
will. It should, therefore, be considered as an armed 
public vessel and receive the treatment of a warship 
by an enemy and by neutrals. Any person taking 
passage on such a vessel can not expect immunity 



168 AMERICA'S CASE AGAINST GERMANY 

other than that accorded persons who are on board a 
warship. A private vessel, engaged in seeking enemy 
naval craft, without such a commission or orders 
from its Government, stands in a relation to the enemy 
similar to that of a civilian who fires upon the or- 
ganized military forces of a belligerent, and is entitled 
to no more considerable treatment. " 

These are so clear that further comment of 
mine is useless, and in concluding this brief 
treatment of the attitude of the United States 
on the subject of armed merchantmen, only one 
consideration need be stressed. Nothing has 
been said here about the German claim that 
British merchant vessels were armed for of- 
fense against submarines. If true, the situation 
would be altered, but in no case has Germany 
been able to relieve herself of liability to the 
United States on the basis of her plea that a 
defensively armed vessel is not undefended ter- 
ritory. She has, to be sure, claimed, as she did 
in the Lusitania case, that the ship sunk carried 
a gun, but the United States has had no diffi- 
culty in traversing these contentions. The Ger- 
man decree of January 31, 1917, furthermore, 
does not confine the operations of submarines 



AEMED MERCHANTMEN i 6 g 

to armed vessels and thus America's case 
against Germany is firmly established without 
the necessity of rebutting the German plea that 
an armed vessel can be sunk without warning. 



CHAPTEE IX 



RENEWED 



German submarine activities against ship- 
ping began on March 1st, the day the new cam- 
paign was to go into effect, but the sinkings 
were indiscriminate and were not confined to 
merchantmen that carried armament. Thus 
the status of armed merchant vessels was not 
introduced to embarrass the United States or 
to excuse Germany. The unarmed French liner 
P atria from Naples to New York was attacked 
by a submarine north of Tunis but was able to 
escape. The Norwegian bark Silius while lying 
at anchor in Havre Roads was torpedoed with- 
out warning on March 9th and of the seven 
Americans in the crew, one was injured. Of 
three Americans on board the Dutch liner 
Tubantia in the North Sea all were saved, but 
during this same period Ambassador Gerard 

170 



THE "SUSSEX" PLEDGES 171 

was requested to obtain prompt reports from 
the Imperial German Government as to their 
responsibility for the sinking of the English- 
man, the Manchester Engineer, the Eagle Point, 
and the Berwindale, all of which had Americans 
on board. But the crowning outrage came on 
March 24th when the channel steamer Sussex, 
an unarmed passenger boat, was sunk without 
warning. Several Americans were among the 
passengers who were killed or injured. 

The reply to Mr. Gerard's inquiry as to 
whether German submarines were responsible 
— that they were was indisputable from the fact 
that in several instances periscopes or the 
underseas boats themselves had been visible — 
was dated April 10th. It first considered the 
four minor cases concerning which inquiry had 
been made. The Berwindale, the Englishman, 
and the Eagle Point had all tried to escape and 
had been shelled in order to compel surrender. 
Time was afforded for the crews to leave be- 
fore the sinkings were effected. In the case of 
the Manchester Engineer, the investigation had 
not been concluded. As for the Sussex, Ger- 
many attempted to make the extraordinary plea 



172 AMERICA'S CASE AGAINST GERMANY 

that her submarines had not been responsible 
for this outrage. 

In the locality in which the Sussex sank, it 
was explained, a German submarine commander 
encountered what seemed to him to be a war 
vessel. "He was led to this conviction, one, by 
the flush of the vessel ; two, by the warship form 
of stern, protruding diagonally backward and 
then falling downward; three, by the warship- 
like coat of paint; four, by the high speed of 
about eighteen sea miles developed by the ves- 
sel; five, by the circumstances that the vessel 
did not follow" the naval course for merchant 
shipping, ' ' but sailed in the middle of the chan- 
nel, pointing about for Havre/ ' The vessel 
was torpedoed and a severe explosion tore loose 
the whole f oreship up to the bridge. This war- 
ranted "the safe conclusion that there were 
large quantities of ammunition on board.' ' To 
the note were attached sketches made by the 
submarine commander of the vessel he sank at 
this time, and a sketch of the Sussex taken from 
the London Daily Graphic. A comparison of 
the pictures would show that the two vessels 
were not identical. Under these circumstances, 



THE "SUSSEX" PLEDGES 173 

"the German Government is forced to assume 
that the damaging of the Sussex is to be attrib- 
uted to another cause than the attack of a Ger- 
man submarine." It was suggested that an 
English mine might have been responsible, 
since, it was claimed, twenty-six of them were 
exploded by German naval forces in the Channel 
on April 1st and 2nd. Finally, Germany de- 
clared "its readiness to permit the facts to be 
ascertained by a mixed commission of investi- 
gation, pursuant to ' ' the Hague Convention for 
the Pacific Settlement of International Dis- 
putes. 

President Wilson's reply, on April 18th, was 
the sharpest yet sent to Germany, and the 
threat that diplomatic relations would be sev- 
ered, coupled with his appearance before Con- 
gress, so convinced Germany of the seriousness 
of his purpose that she pledged herself not to 
sink vessels within or without the war zone 
"without warning and without saving human 
lives unless the ship attempts to escape or offer 
resistance. ' ' The note (the address to Con- 
gress was largely in the same language) with 
elaborate appendices giving the evidence avail- 



174 AMEKICA'S CASE AGAINST GEKMANY 

able, showed it to be indisputable that a sub- 
marine had sunk the Sussex. If it had been an 
isolated case, "the Government of the United 
States might find it possible to hope that the 
officer who was responsible for that act had 
willfully violated his orders or had been crim- 
inally negligent in taking none of the precau- 
tions they prescribed, and that the ends of jus- 
tice might be satisfied by imposing upon him 
an adequate punishment, coupled with a formal 
disavowal of the act and payment of a suitable 
indemnity by the Imperial Government. But, 
though the attack upon the Sussex was mani- 
festly indefensible and caused a loss of life so 
tragical as to make it stand forth as one of the 
most terrible examples of the inhumanity of 
submarine warfare as the commanders of Ger- 
man vessels are conducting it, it unhappily does 
not stand alone. 

"On the contrary, the Government of the 
United States is forced by recent events to con- 
clude that it is only one instance, even though 
one of the most extreme and most distressing 
instances, of the deliberate method and spirit 
of indiscriminate destruction of merchant ves- 



THE "SUSSEX" PLEDGES 175 

sels of all sorts, nationalities, and destinations 
which have become more and more unmistak- 
able as the activity of German undersea vessels 
of war has in recent months been quickened and 
extended. ' ' 

The President then reviewed his course since 
Germany announced her intention in February, 
1915. The United States had taken the position 
that such a measure " could not be pursued 
without constant gross and palpable violations 
of the accepted law of nations ' ' which was ' ' not 
of recent origin or founded upon merely arbi- 
trary principles set up by convention, ' ' but was 
1 l based, on the contrary, upon manifest prin- 
ciples of humanity and has long been estab- 
lished with the approval and by the express 
assent of all civilized nations." The Imperial 
Government declined to abandon this policy and 
promised that the danger to neutrals would be 
reduced to a minimum by the instructions is- 
sued submarine commanders, but this result did 
not take place. 

"Again and again the Imperial Government has 
given its solemn assurances to the Government of 
the United States that at least passenger ships would 



176 AMEEICA'S CASE AGAINST GEBMANY 

not be thus dealt with, and yet it has repeatedly per- 
mitted its undersea commanders to disregard those 
assurances with entire impunity. As recently as Feb- 
ruary last it gave notice that it would regard all 
armed merchantmen owned by its enemies as part of 
the armed naval forces of its adversaries and deal 
with them as with men-of-war, thus, at least by im- 
plication, pledging itself to give warning to vessels 
which were not armed and to accord security of life 
to their passengers and crews; but even this limita- 
tion their submarine commanders have recklessly ig- 
nored. 

1 ' Vessels of neutral ownership, even vessels of neu- 
tral ownership bound from neutral port to neutral 
port, have been destroyed, along with vessels of 
belligerent ownership, in constantly increasing num- 
bers. Sometimes the merchantmen attacked have been 
warned and summoned to surrender before being fired 
on or torpedoed; sometimes their passengers and 
crews have been vouchsafed the poor security of being 
allowed to take the ship's boats before the ship was 
sent to the bottom. But again and again no warning 
has been given, no escape even to the ship's boats 
allowed to those on board. Great liners like the 
Lusitania and Arabic, and mere passenger boats like 
the Sussex, have been attacked without a moment's 
warning, often before they have even become aware 
that they were in the presence of an armed ship of 
the enemy, and the lives of noncombatants, passengers, 



THE "SUSSEX" PLEDGES 177 

and crew, have been destroyed wholesale and in a 
manner which the Government of the United States 
cannot but regard as wanton and without the slightest 
color of justification. No limit of any kind has, in 
fact, been set to their indiscriminate pursuit and 
destruction of merchantmen of all kinds and nation- 
alities within the waters which the Imperial Govern- 
ment has chosen to designate as lying within the seat 
of war. The roll of Americans who have lost their 
lives upon ships thus attacked and destroyed has 
grown month by month until the ominous toll has 
mounted into the hundreds. 1 

"The Government of the United States has been 

'In his address to Congress President Wilson referred par- 
ticularly to the Sussex as follows: 

"One of the latest and most shocking instances of this 
method of warfare was that of the destruction of the French 
cross-channel steamer Sussex. It must stand forth, as the sink- 
ing of the steamer Lusitania did, as so singularly tragical and 
unjustifiable as to constitute a truly terrible example of the 
inhumanity of submarine warfare as the commanders of Ger- 
man vessels have for the past 12 months been conducting it. 
If this instance stood alone, some explanation, some disavowal 
by the German Government, some evidence of criminal mistake 
or willful disobedience on the part of the commander of the 
vessel that fired the torpedo, might be sought or entertained, 
but unhappily it does not stand alone. Eecent events make the 
conclusion inevitable that it is only one instance, even though 
it be one of the most extreme and distressing instances, of the 
spirit and method of warfare which the Imperial German Gov- 
ernment has mistakenly adopted and which from the first ex- 
posed that Government to the reproach of thrusting all neutral 
rights aside in pursuit of its immediate objects." 



178 AMERICA'S CASE AGAINST GERMANY 

very patient. At every stage of this distressing ex- 
perience of tragedy after tragedy it has sought to be 
governed by the most thoughtful consideration of the 
extraordinary circumstances of an unprecedented war 
and to be guided by sentiments of very genuine 
friendship for the people and Government of Ger- 
many. It has accepted the successive explanations 
and assurances of the Imperial Government as, of 
course, given in entire sincerity and good faith, and 
has hoped, even against hope, that it would prove 
to be possible for the Imperial Government so to 
order and control the acts of its naval commanders 
as to square its policy with the recognized principles 
of humanity as embodied in the law of nations. It 
has made every allowance for unprecedented condi- 
tions and has been willing to wait until the facts 
became unmistakable and were susceptible of only one 
interpretation. 

"It now owes it to a just regard for its own rights 
to say to the Imperial Government that that time has 
come. It has become painfully evident to it that the 
position which it took at the very outset is inevitable, 
namely, the use of submarines for the destruction of 
an enemy's commerce, is, of necessity, because of the 
very character of the vessels employed and the very 
methods of attack which their employment of course 
involves, utterly incompatible with the principles of 
humanity, the long-established and incontrovertible 



THE "SUSSEX" PLEDGES 179 

rights of neutrals, and the sacred immunities of non- 
combatants. 

"If it is still the purpose of the Imperial Govern- 
ment to prosecute relentless and indiscriminate war- 
fare against vessels of commerce by the use of sub- 
marines, without regard to what the Government of 
the United States must consider the sacred and indis- 
putable rules of international law and the universally- 
recognized dictates of humanity, the Government of 
the United States is at last forced to the conclusion 
that there is but one course it can pursue: Unless 
the Imperial Government should now immediately de- 
clare and effect an abandonment of its present meth- 
ods of submarine warfare against passenger and 
freight-carrying vessels, the Government of the United 
States can have no choice but to sever diplomatic 
relations with the German Empire altogether. This 
action the Government of the United States contem- 
plates with the greatest reluctance, but feels con- 
strained to take in behalf of humanity and the rights 
of neutral nations." 2 

2 The concluding paragraphs of the President 's address to 
Congress were as follows: 

1 1 1 have deemed it my duty, therefore, to say to the Imperial 
German Government that if it is still its purpose to prosecute 
relentless and indiscriminate warfare against vessels of com- 
merce by the use of submarines, notwithstanding the now dem- 
onstrated impossibility of conducting that warfare in accord- 
ance with what the Government of the United States must con- 
sider the sacred and indisputable rules of international law and 
the universally recognized dictates of humanity, the Government 



180 AMERICA'S CASE AGAINST GERMANY 

Here, it should be noticed, President Wilson 
reverted to the position of his first Lusitania 
note that submarines could not be used against 
commerce without a disregard of the sacred 
immunities of noncombatants, and, more than 
that, he asserted the inevitability of a break 
with Germany, not simply on account of the 

of the United States is at last forced to the conclusion that 
there is but one course it can pursue, and that unless the Im- 
perial German Government should now immediately declare and 
effect an abandonment of its present methods of warfare 
against passenger and freight carrying vessels this Government 
can have no choice but to sever diplomatic relations with the 
Government of the German Empire altogether. 

"This decision I have arrived at with the keenest regret; the 
possibility of the action contemplated I am sure all thoughtful 
Americans will look forward to with unaffected reluctance. But 
we can not forget that we are in some sort and by the force 
of circumstances the responsible spokesmen of the rights of 
humanity, and that we can not remain silent while those rights 
seem in process of being swept utterly away in the maelstrom 
of this terrible war. We owe it to a due regard for our own 
rights as a Nation, to our sense of duty as a representative of 
the rights of neutrals the world over, and to a just conception 
of the rights of mankind to take this stand now with the utmost 
solemnity and firmness. 

"I have taken it, and taken it in the confidence that it will 
meet with your approval and support. All sober-minded men 
must unite in hoping that the Imperial German Government, 
which has in other circumstances stood as the champion of all 
that we are now contending for in the interest of humanity, 
may recognize the justice of our demands and meet them in the 
spirit in which they are made." 



THE "SUSSEX" PLEDGES 181 

loss of American citizens but because the meth- 
ods of attack were "incompatible with the prin- 
ciples of humanity" and the rights of neutrals. 
But the objection to the use of submarines at 
all is apart from the main contention that the 
passengers and crew must be saved before a 
vessel may be sunk and Germany's agreement 
satisfied the demands of the United States. 

The German reply, delivered on May 4th, ad- 
mitted the possibility that the ship torpedoed 
was the Sussex but repudiated the assertion 
of the United States that the incident was "but 
one instance of a deliberate method of indis- 
criminate destruction of vessels of all sorts, 
nationalities, and destinations by German sub- 
marine commanders." Since the United States 
had omitted to refer to concrete facts, it was 
of little avail to enter upon details. Germany, 
the note claimed, "had imposed far-reaching 
restraints upon the use of the submarine weap- 
on, solely in consideration of neutrals ' interests, 
in spite of the fact that these restrictions are 
necessarily of advantage to Germany's ene- 
mies. No such consideration has ever been 
shown neutrals by Great Britain and her 



182 AMEBICA'S CASE AGAINST GEEMANY 

Allies." German submarine commanders have 
had orders to act in accordance with the prin- 
ciples of visit and search, the sole exception be- 
ing warfare against enemy trade carried on in 
enemy vessels in the war zone. No assurances 
as to this have ever been given the United 
States. These orders are executed in good faith 
but errors can not be prevented; and even in 
cases where only cruiser warfare is resorted 
to, neutral persons and property come to grief. 
Germany had made proposals 3 to the United 
States to reduce to a minimum the dangers of 
naval warfare, but these had not been accepted. 
Germany was still ready to come to an agree- 
ment along these lines, and after professing a 
desire to confine warfare on sea and land to 
the armed forces of the belligerents, the note 
continued : 

1 ' In self-defense against the illegal conduct of Brit- 
ish warfare, while fighting a bitter struggle for na- 
tional existence, Germany had to resort to the hard 
but effective weapon of submarine warfare. 

8 That merchant ships should not be armed, that the United 
States should compel Great Britain to relax her restrictions 
upon Germany's trade, and that an embargo should be placed 
upon the exports of arms to the Allies. See above, p. 33ff. 



THE "SUSSEX" PLEDGES 183 

"As matters stand, the German Government cannot 
but reiterate its regret that the sentiments of human- 
ity which the Government of the United States ex- 
tends with such fervor to the unhappy victims of sub- 
marine warfare, are not extended with the same 
warmth of feeling to many millions of women and 
children who, according to the avowed intention of 
the British Government, shall be starved, and who by 
sufferings shall force the victorious armies of the Cen- 
tral Powers into ignominious capitulation. 

"The German Government, in agreement with the 
German people, fails to understand this discrimina- 
tion, all the more as it has repeatedly and explicitly 
declared itself ready to use the submarine weapon in 
strict conformity with the rules of international law 
as recognized before the outbreak of the war, if 
Great Britain likewise was ready to adapt the con- 
duct of warfare to these rules. 

' ' Several attempts made by the Government of the 
United States to prevail upon the British Govern- 
ment to act accordingly failed because of flat refusal 
on the part of the British Government. Moreover, 
Great Britain again and again has violated interna- 
tional law, surpassing all bounds in outraging neutral 
rights. . . . 

"The German people knows that the Government 
of the United States has the power to confine the war 
to armed forces of the belligerent countries, in the 
interest of humanity and maintenance of international 



184 AMEBICA'S CASE AGAINST GEKMANY 

law. The Government of the United States would 
have been certain of attaining this end had it been 
determined to insist, against Great Britain, on the in- 
controvertible rights to freedom of the seas. But, as 
matters stand, the German people is under the im- 
pression that the Government of the United States, 
while demanding that Germany, struggling for exist- 
ence, shall restrain the use of an effective weapon and 
while making compliance with these demands a con- 
dition for maintenance of relations with Germany, 
confines itself to protests against illegal methods 
adopted by Germany's enemies. Moreover, the Ger- 
man people knows to what considerable extent its 
enemies are supplied with all kinds of war material 
from the United States. 

"It will, therefore, be understood that the appeal 
made by the Government of the United States to sen- 
timents of humanity and principles of international 
law can not, under the circumstances, meet the same 
hearty response from the German people which such 
an appeal otherwise always is certain to find here. 
If the German Government, nevertheless, is resolved 
to go to the utmost limit of concessions, it has been 
guided not alone by the friendship connecting the two 
great nations for over one hundred years, but also 
by the thought of the great doom which threatens the 
entire civilized world should the cruel and sanguinary 
war be extended and prolonged. 

"The German Government, conscious of Germany's 



THE "SUSSEX" PLEDGES 185 

strength, twice within the last few months announced 
before the world its readiness to make peace on a basis 
safeguarding Germany's vital interests, thus indicat- 
ing that it is not Germany's fault if peace is still 
withheld from the nations of Europe. The German 
Government feels all the more justified in declaring 
that responsibility could not be borne before the 
forum of mankind and history if after twenty-one 
months of the war's duration the submarine ques- 
tion, under discussion between the German Govern- 
ment and the Government of the United States, were 
to take a turn seriously threatening maintenance of 
peace between the two nations." 

Germany declared that she wished to prevent 
such an occurrence, and that for the duration of 
the war she was prepared to confine its opera- 
tions to the fighting forces of the belligerents, 

* ' thereby also insuring the freedom of the seas, a prin- 
ciple upon which the German Government believes, 
now as before, that it is in agreement with the Gov- 
ernment of the United States. 

* ' The German Government, guided by this idea, no- 
tifies the Government of the United States that Ger- 
man naval forces have received the following order: 

1 ' ' In accordance with the general principles of visit 
and search and the destruction of merchant vessels, 
recognized by international law, such vessels, both 



186 AMERICA'S CASE AGAINST GERMANY 

within and without the area declared a naval war 
zone, shall not be sunk without warning and without 
saving human lives unless the ship attempt to escape 
or offer resistance. ' 

1 ' But neutrals can not expect that Germany, forced 
to fight for existence, shall, for the sake of neutral 
interests, restrict the use of an effective weapon, if 
the enemy is permitted to continue to apply at will 
methods of warfare violating rules of international 
law. Such a demand would be incompatible with the 
character of neutrality, and the German Government 
is convinced that the Government of the United States 
does not think of making such a demand, knowing 
that the Government of the United States repeatedly 
declares that it is determined to restore the princi- 
ple of freedom of the seas, from whatever quarter it 
has been violated." 

The pledge thus made was immediately quali- 
fied by the ominous statement that Germany did 
"not doubt that the Government of the United 
States will now demand and insist that the 
British Government shall forthwith observe the 
rules of international law universally recog- 
nized before the war," and threatened that 
"should the steps taken by the Government of 
the United States not attain the object it de- 
sires to have the laws of humanity followed 



THE "SUSSEX" PLEDGES 187 

by all belligerent nations, the German Govern- 
ment would then be facing a new situation in 
which it must reserve to itself complete liberty 
of decision." 

President Wilson replied by accepting the 
pledge and ignoring the qualification that 
America's case against Great Britain would 
have to be successfully pressed. He said : 

"The Government of the United States feels it nec- 
essary to state that it takes it for granted that the 
Imperial German Government does not intend to 
imply that the maintenance of its newly announced 
policy is in any way contingent upon the course or 
result of diplomatic negotiations between the Govern- 
ment of the United States and any other belligerent 
Government, notwithstanding the fact that certain 
passages in the Imperial Government's note of the 
4th instant might appear to be susceptible of that 
construction. In order, however, to avoid any possi- 
ble misunderstanding, the Government of the United 
States notifies the Imperial Government that it can 
not for a moment entertain, much less discuss, a sug- 
gestion that respect by German naval authorities for 
the rights of citizens of the United States upon the 
high seas should in any way or in the slightest degree 
be made contingent upon the conduct of any other 
Government affecting the right of neutrals and non- 



188 AMERICA'S CASE AGAINST GERMANY 

combatants. Responsibility in such matters is single, 
not joint; absolute, not relative. " 

The exchanges were concluded with Ger- 
many's note of May 8th, admitting the destruc- 
tion of the Sussex through a mistake by the 
submarine commander in forming a too hurried 
judgment of the character of the vessel. He 
did not, therefore, 

"act fully in accordance with the strict instruction 
which called upon him to exercise particular care. 
"In view of these circumstances the German Gov- 
ernment frankly admits that the assurance given to 
the American Government, in accordance with which 
passenger vessels were not to be attacked without 
warning, has not been adhered to in the present case. 
As was intimated by the undersigned in the note of 
the 4th instant, the German Government does not 
hesitate to draw from this resultant consequences. 
It therefore expresses to the American Government 
its sincere regret regarding the deplorable incident 
and declares its readiness to pay an adequate indem- 
nity to the injured American citizens. It also dis- 
approved of the conduct of the commander, who has 
been appropriately punished." 4 

4 But no information has ever been available as to the nature 
of the penalty suffered by the commander in this case or in that 
of the Ancona. The commander of the submarine which sank 
the Lusitania was decorated. 



CHAPTER X 

THE PARTING OF THE WAYS 

From the date of these conditional pledges 
to the decree of January 31, 1917, there oc- 
curred no sinkings which were deemed by the 
United States to violate the promises made, al- 
though the warfare of submarines seemed very 
far from being conducted with a regard for 
noncombatant lives, whether enemy or neutral. 
Two vessels under charter by the American 
Commission for Relief in Belgium were among 
those sunk, and on May 8th the White Star 
liner Cymric, engaged in the freight service, 
was torpedoed without warning, five being 
killed and many wounded, but there were no 
Americans on board. During the latter part 
of May and the first weeks in June, submarine 
activities seemed to abate somewhat, but Ger- 
many issued a warning that a neutral vessel 
could be attacked, if, upon being commanded 

189 



190 AMERICA'S CASE AGAINST GERMANY 

to stop by a submarine, it refused to obey. In 
the Mediterranean, the campaign was more suc- 
cessful than in the war zone, and in both re- 
gions during August and September subma- 
rines were able to account for about seventy- 
five vessels, some of them neutral. The safety 
and interests of American citizens were not 
affected, and so, from the purely national stand- 
point now taken by the United States, the Ger- 
man pledges had been kept. In October, how- 
ever, there were sensational but not illegal de- 
velopments. 

A German submarine (U-53) of the largest 
type appeared on October 7th in the harbor at 
Newport and lay there several hours. It was, 
the captain said, seventeen days out of Wil- 
helmshaven and had sufficient supplies of all 
kinds for a three months ' cruise. The incident 
was a noteworthy one for the U-53 was the first 
war submarine to cross the Atlantic without a 
convoy, and that a war engine belonging to a 
European belligerent could rise silently from 
the sea in an American harbor showed more 
effectively than any theoretical argument 
could, that our days of "splendid isolation" are 



THE PARTING OF THE WAYS 191 

over. The U-53 left that evening and the next 
day sank five vessels at distances of from forty 
to eighty miles from the mainland. One Dutch, 
one Norwegian, and two British freighters thus 
met their fate, together with the Stephano, a 
British passenger liner running between New 
York and Halifax. The American steamer 
Kansan was stopped, but was allowed to pro- 
ceed. No lives were lost as warning was given 
in each case and those on board the vessels 
took to small boats. That the "poor safety' ' 
thus accorded did not result in some casualties 
is due to the fact that seventeen American tor- 
pedo boat destroyers were sent out and helped 
to bring in the passengers and crew. 

Now, although in those cases warning was 
given before the vessels were sunk, but for the 
services of the Aanerican torpedo boat destroy- 
ers some of the passengers of the Stephano 
would doubtless have been drowned or injured 
since the vessel was forty-two miles from land 
when sunk. Nevertheless the United States 
considered that its neutral rights had not been 
infringed and apparently made no protest. 
Furthermore, on August 31st the United States 



192 AMERICA'S CASE AGAINST GERMANY 

had declined to accept the proposals of a mem- 
orandum from the French Government in which 
it was urged that the difficulty in determining 
the nationality of a submarine and its com- 
batant character, and the likelihood that, if far 
from base it would be able to secure supplies 
surreptitiously, should exclude undersea boats 
from the benefits of the rules regarding the ad- 
mission and sojourn of war and merchant ves- 
sels in neutral waters. Merchant submarines 
like the Deutschland and belligerent ones like 
the U-53 would, according to the policy of the 
United States, enjoy the same privileges as 
liners or cruisers belonging to one of the En- 
tente Powers. A contrary rule was announced 
by some of the European neutrals. 

But cases immediately arose which did affect 
the neutral rights of the United States. On 
October 30th the British steamships Marina 
and Rowanmore were sunk off the Irish coast. 
The former was a horse transport with Ameri- 
cans in the crew; the latter was a freighter 
with a mixed cargo. When the Marina was 
attacked six Americans lost their lives. On 
November 6th, the Peninsular & Oriental liner 



THE PAETING OF THE WAYS 193 

Arabia was torpedoed in the Mediterranean 
without warning, but apparently all of the 450 
passengers were saved. The next day the 
American Hawaiian steamship Columbian, with 
a cargo of steel for Italy, was torpedoed, the 
crew being compelled to take to open boats. 

Since the destruction of the Marina caused 
the death of six Americans, and the attack on 
the Arabia was a violation of the pledge that 
"liners" would not be sunk without warning, 
the United States made representations in both 
cases to the Imperial German Government. 
The reply as to the Arabia stated that the sub- 
marine commander was convinced that it was a 
transport ship and consequently attacked with- 
out delay. If it could be shown that the Arabia 
was a passenger steamer, "the action of the 
commander would not have been in accordance 
with the instructions given him" and the case 
would then be "a regrettable mistake, from 
which the German Government would promptly 
draw the necessary consequences." As for the 
Marina all the pertinent facts were not at the 
disposal of Germany. But the issues presented 



194 AMERICA'S CASE AGAINST GERMANY 

were very serious, 1 and they were aggravated 
by the sinking off the Spanish coast of the 
American ship Chemung and in the Mediterra- 
nean of the British horse transport Russian, 
with the loss of seventeen Americans. 

It was felt that a crisis was approaching even 
though on November 15th a denial was made 
by Dr. Alfred Zimmermann, German Secretary 
for Foreign Affairs, that neutral merchant 
ships were being sunk per se. The German 
naval forces were simply "sinking as a de- 
fensive measure ammunition transports and 
other contraband shipments to our enemies that 
are calculated to lengthen the war. ' ' This was 
being done l ' in punctilious compliance with the 
rules of international law applying to cruiser 
warfare." Accordingly, the statement con- 
tinued, Germany would "continue to exercise 
her perfect good right to take these defensive 
measures. If neutrals have to lament the loss 

1 A statement issued by the British Admiralty announced that 
from May 5th (the date of Germany's Sussex pledge) to Octo- 
ber 28th 22 British merchant ships had been torpedoed without 
warning and 131 non-combatants had lost their lives. Some of 
the details of these sinkings are particularly revolting. During 
the same period 107 British ships had been sunk, the crews and 
passengers being given time to take to open boats. 



THE PARTING OF THE WAYS 195 

of ships and cargoes, it should be remembered 
that the real blame lies on England." 

In spite of the isolated cases of sinkings it 
was generally thought that Germany still stood 
by her pledges, and meanwhile occurred the 
peace proposals which obscured, in the popular 
mind at least, all thoughts of the submarine 
warfare. These proposals are slightly germane 
to the present discussion because they are men- 
tioned in the final German communication. The 
first was made by Germany herself on Decem- 
ber 12, 1916. Addressed to the neutral powers 
for transmission to the Allies, it expressed the 
willingness of the Central Powers to negotiate 
for peace and disclaimed any responsibility if 
the war continued. On December 18th Presi- 
dent Wilson addressed a note to all the bel- 
ligerents calling upon them to state the objects 
for which they were fighting in order to learn 
' l how near the haven of peace may be for which 
all mankind longs with an intense and increas- 
ing longing.' ' The German reply was couched 
in vague terms and merely expressed a will- 
ingness to send delegates to a meeting of the 
belligerent states. On the other hand, the re- 



196 AMEBICA'S CASE AGAINST GEKMANY 

plies of the Entente Allies to the German pro- 
posals (December 30th) and to President Wil- 
son's note (January 10th, 1917) more nearly 
answered Mr. Wilson's request for a statement 
of the objects for which the war was being 
fought and the terms upon which peace would 
be agreed to. In addition to this, they con- 
stituted a severe arraignment of the part 
played by Germany in bringing on the war and 
her methods of conducting it. Germany's reply 
to the Allies, dated January 11th, did little more 
than repeat the first proposal. Finally, on Jan- 
uary 22nd, Mr. Wilson appeared before the 
United States Senate, as the body associated 
with him "in the final determination of our 
international obligation," and set forth his 
views as to the nature of a European peace that 
would be likely to be permanent and the terms 
upon which the United States would join a 
League in order to insure such a peace by a 
joint guarantee. 

Copies of this address were transmitted to 
the belligerent governments and in his commu- 
nication of January 31st Count BernstorrY said 
that it had received careful consideration and 



THE PAKTING OF THE WAYS 197 

had gratified the Imperial Government in "that 
the main tendencies of this important statement 
correspond largely to the desires and princi- 
ples professed by Germany." The Imperial 
Government regretted "that the attitude of her 
enemies who are so entirely opposed to peace 
makes it impossible for the world at present to 
bring about the realization of these lofty 
ideals. " This created a new situation and Ger- 
many was forced to new decisions — she must 
use every weapon at her disposal in the fight 
for existence. 

1 ' Since two years and a half England is using her 
naval power for a criminal attempt to force Germany 
into submission by starvation. In brutal contempt of 
international law the group of powers led by Eng- 
land not only curtail the legitimate trade of their 
opponents but they also by ruthless pressure com- 
pel neutral countries either to altogether forego 
every trade not agreeable to the Entente Powers or 
to limit it according to their arbitrary decrees. The 
American Government knows the steps which have 
been taken to cause England and her allies to return 
to the rules of international law and to respect the 
freedom of the seas. The English Government, how- 
ever, insists upon continuing its war of starvation, 



198 AMERICA'S CASE AGAINST GERMANY 

which does not at all affect the military power of its 
opponents but compels women and children, the sick 
and the aged, to suffer for their country pains and 
privations which endanger the vitality of the nation. 
Thus British tyranny mercilessly increases the suffer- 
ings of the world indifferent to the laws of humanity, 
indifferent to the protests of the neutrals whom they 
severely harm, indifferent even to the silent longing 
for peace among England's own allies. Each day of 
the terrible struggle causes new destruction, new suf- 
ferings. Each day shortening the war will on both 
sides preserve the life of thousands of brave soldiers 
and be a benefit to mankind. 

1 ' The Imperial Government could not justify before 
its own conscience, before the German people, and 
before history the neglect of any means destined to 
bring about the end of the war. Like the President 
of the United States, the Imperial Government had 
hoped to reach this goal by negotiations. Since the 
attempts to come to any understanding with the En- 
tente Powers have been answered by the latter with 
the announcement of an intensified continuation of 
the war, the Imperial Government — in order to serve 
the welfare of mankind in a higher sense and not to 
wrong its own people — is now compelled to continue 
the fight for existence, again forced upon it, with the 
full employment of all the weapons which are at 
its disposal. 

"Sincerely trusting that the people and Govern- 



THE PAKTING OF THE WAYS 199 

ment of the United States will understand the mo- 
tives for this decision and its necessity, the Imperial 
Government hopes that the United States may view 
the new situation from the lofty heights of impartial- 
ity and assist on their part to prevent further misery 
and avoidable sacrifice of human life." 

The two memoranda enclosed announced a 
campaign on the high seas utterly unparalleled 
in its lawlessness. The first memorandum 
charged that the Entente Powers were violat- 
ing all the rules of international law while Ger- 
many had not made unrestricted use of the 
weapon which she possessed in her submarines. 
Since the Entente Powers had made it impos- 
sible to come to an understanding based upon 
the equality of rights of all nations, ''Germany 
is unable further to forego the full use of her 
submarines." The United States would under- 
stand, it was not doubted, that this situation 
was forced upon Germany by the brutal meth- 
ods of warfare used against her and the deter- 
mination of the Allies to crush the Central Pow- 
ers. These considerations gave back to Ger- 
many the freedom of action which she reserved 
in her note on the Sussex, May 4, 1916. 



200 AMERICA'S CASE AGAINST GERMANY 

" Under these circumstances Germany will meet the 
illegal measures of her enemies by forcibly prevent- 
ing after February 1, 1917, in a zone around Great 
Britain, France, Italy, and in the Eastern Mediter- 
ranean all navigation, that of neutrals included, from 
and to England and from and to France, etc. All 
ships met within that zone will be sunk. 

''The Imperial Government is confident that this 
measure will result in a speedy termination of the 
war and in the restoration of peace which the Gov- 
ernment of the United States has so much at heart. 
Like the Government of the United States, Germany 
and her allies had hoped to reach this goal by nego- 
tiations. Now that the war, through the fault of 
Germany 's enemies, has to be continued, the Imperial 
Government feels sure that the Government of the 
United States will understand the necessity of adopt- 
ing such measures as are destined to bring about 
a speedy end of the horrible and useless bloodshed. 
The Imperial Government hopes all the more for such 
an understanding of her position, as the neutrals 
have, under the pressure of the Entente Powers, suf- 
fered great losses, being forced by them either to give 
up their entire trade or to limit it according to condi- 
tions arbitrarily determined by Germany's enemies in 
violation of international law." 

The second memorandum gave the details of 
the zone in which all kinds of merchant shipping 



THE PAETING OF THE WAYS 201 

would be sunk. Trade with the Entente Powers 
was absolutely barred. "Americans en route 
to the blockade zone on enemy freight steam- 
ers are not endangered, ' ' it was said, "as the 
enemy shipping firms can prevent such ships in 
time from entering the zone." American pas- 
senger steamers could continue undisturbed if 
the port of destination was Falmouth; if a 
specified course was taken ; if the steamers were 
marked with the American flag on the hull as 
described; if the flags at the mast heads were 
arranged as indicated, and if the steamers were 
lighted at night. No other American vessels, 
however, could use these markings, the cargoes 
must be guaranteed to be of a non-contraband 
character, and only one steamer a week could 
sail in either direction, with arrival at Falmouth 
on Sunday and departure from Falmouth on 
Wednesday. 

This declaration came as a thunderbolt. 
There had, it is true, been forecasts in the press 
reports from Germany that a resumption of an 
unrestricted submarine campaign was urged 
and might be attempted. Uncensored corre- 
spondence from Cologne (dated January 12th) 



202 AMERICA'S CASE AGAINST GEEMANY 

to the London Times, for example, said that 
more than one thousand underseas boats were 
in course of construction; three hundred were 
in use; less than one hundred had been de- 
stroyed, and a more extensive use of them was 
contemplated. But few indeed expected such a 
drastic announcement as that made on January 
31st. What would be the attitude of the United 
States? 

President Wilson announced his policy on 
February 3d in an address to the two houses of 
Congress in joint session. He quoted the sol- 
emn warning of his Sussex note that unless Ger- 
many immediately abandoned her use of sub- 
marines contrary to international law and "the 
universally recognized dictates of humanity' ' 
the United States would sever diplomatic rela- 
tions, and the German pledge, in reply, that it 
would "do its utmost to confine the operations 
of war for the rest of its duration to the fighting 
forces of the belligerents," instructions having 
been issued that vessels should not be sunk in 
the war zone "without warning and without 
saving human lives, unless these ships attempt 
to escape or offer resistance.' ' This promise, 



THE PARTING OF THE WAYS 203 

however, as has been pointed out above, was 
qualified by the intimation that England must 
relax some of her restrictions on commerce; 
and since the rejoinder of the United States on 
May 8th to the effect that the rights of Ameri- 
can citizens on the high seas could not be made 
contingent upon the conduct of any other bel- 
ligerent was not replied to, the German pledge 
had been accepted unreservedly. This pledge — 
and likewise the many preceding it — was with- 
drawn by the decree of January 31st, and his 
policy with regard to this action President Wil- 
son went on to outline in measured words that 
deserve to be quoted in full : 

' ' I think that you will agree with me that, in view 
of this declaration, which suddenly and without prior 
intimation of any kind deliberately withdraws the sol- 
emn assurance given in the Imperial Government's 
note of the fourth of May, 1916, this Government has 
no alternative consistent with the dignity and honor 
of the United States but to take the course which, in 
its note of the eighteenth of April, 1916, it announced 
that it would take in the event that the German Gov- 
ernment did not declare and effect an abandonment of 
the methods of submarine warfare which it was then 



204 AMERICA'S CASE AGAINST GERMANY 

employing and to which it now purposes again to 
resort. 

''I have, therefore, directed the Secretary of State 
to announce to His Excellency the German Ambassa- 
dor that all diplomatic relations between the United 
States and the German Empire are severed, and that 
the American Ambassador at Berlin will immediately 
be withdrawn; and, in accordance with this decision, 
to hand to His Excellency his passports. 

11 Notwithstanding this unexpected action of the 
German Government, this sudden and deeply deplor- 
able renunciation of its assurances, given this Gov- 
ernment at one of the most critical moments of ten- 
sion in the relations of the two Governments, I refuse 
to believe that it is the intention of the German 
authorities to do in fact what they have warned us 
they will feel at liberty to do. I can not bring 
myself to believe that they will indeed pay no regard 
to the ancient friendship between their people and 
our x own or to the solemn obligations which have 
been exchanged between them and destroy American 
ships and take the lives of American citizens in the 
willful prosecution of the ruthless naval program 
they have announced their intention to adopt. Only 
actual overt acts on their part can make me believe 
it even now. 

"If this inveterate confidence on my part in the 
sobriety and prudent foresight of their purpose should 
unhappily prove unfounded; if American ships and 



THE PASTING OF THE WAYS 205 

American lives should in fact be sacrificed by their 
naval commanders in heedless contravention of the 
just and reasonable understandings of international 
law and the obvious dictates of humanity, I shall 
take the liberty of coming again before the Congress 
to ask that authority be given me to use any means 
that may be necessary for the protection of our sea- 
men and our people in the prosecution of their peace- 
ful and legitimate errands on the high seas. I can 
do nothing less. I take it for granted that all neu- 
tral Governments will take the same course. 

"We do not desire any hostile conflict with the 
Imperial German Government. We are the sincere 
friends of the German people and earnestly desire to 
remain at peace with the Government which speaks 
for them. We shall not believe that they are hostile 
to us unless and until we are obliged to believe it; 
and we purpose nothing more than the reasonable de- 
fense of the undoubted rights of our people. We wish 
to serve no selfish ends. We seek to stand true alike 
in thought and in action to the immemorial principles 
of our people which I sought to express in my address 
to the Senate only two weeks ago — seek merely to 
vindicate our right to liberty and justice and an un- 
molested life. These are the bases of peace, not war. 
God grant we may not be challenged to defend them 
by acts of willful injustice on the part of the Govern- 
ment of Germany !" 



206 AMERICA'S CASE AGAINST GERMANY 

The same day Ambassador Bernstorff was 
given his passports, the American diplomatic 
and consular representatives were ordered to 
leave Germany, and the United States began to 
prepare for possible eventualities if Germany 
committed some " overt act." 



CHAPTER XI 

OVERT ACTS, ARMED NEUTRALITY, AND WAR 

After the break in diplomatic relations 
every phase of Germany's activities showed 
that she was unwilling to yield and would in- 
sist upon carrying out the program which she 
had announced. The American representative 
in Berlin, Ambassador Gerard, did not receive 
the courtesies to which international law and 
comity entitled him; it was intimated that his 
departure and the safety of Americans who 
were leaving might be made dependent upon 
Mr. Gerard's agreeing to a revision of the old 
Prussian treaties so that the United States 
would be estopped from seizing the German 
ships in American harbors. Furthermore, it 
seemed like a studied affront to the United 
States when the Imperial Government persisted 
in detaining seventy-two American sailors from 
the Yarrowdale on the ground that they had 

207 



208 AMERICA'S CASE AGAINST GERMANY 

accepted pay on an armed vessel and were 
hence prisoners of war. The United States 
very properly insisted that they could not have 
this status unless they had committed hostile 
acts, and on February 16th the men were re- 
leased. Humiliating indignities were reported 
to have been suffered by Americans leaving 
Berlin and altogether Germany seemed to be 
losing no opportunity to affront the United 
States. 

The destruction of merchant vessels by sub- 
marines began on a wider and more successful 
scale than had at any time been the case since 
the first declaration of February, 1915. During 
the first two weeks after diplomatic relations 
were broken, nearly one hundred ships were re- 
ported sunk with a total of more than 200,000 
tons. Of special concern to the United States 
were the sinking of two American vessels and 
an attack on the French steamer Athos which 
caused the death of an American missionary. 
More serious, however, was the virtual embargo 
which was laid on the mails and shipments of 
various sorts to Europe. "With no protective 
measures decided upon by the Wilson Adminis- 



OVERT ACTS— WAR 209 

tration, American vessels were naturally fear- 
ful of braving the submarine menace, and the 
country suffered a tremendous freight conges- 
tion as well as a serious diminution of its export 
trade. 

At the end of three weeks it seemed to be 
clear that the threat of Mr. Wilson's address to 
Congress in breaking off diplomatic relations 
would have no effect, and so on February 26th 
he again addressed both houses, this time to 
ask for the authority he deemed necessary to 
safeguard the rights of the United States. He 
reported that two American vessels had been 
sunk: the Housatonic (February 3d), which ap- 
peared to be a case like that of the William P. 
Frye in which Germany had admitted liability 
and had safeguarded the lives of the crew with 
reasonable care, and the Lyman M. Law (Feb- 
ruary 12th) which "disclosed a ruthlessness of 
method which deserves grave condemnation, but 
was accompanied by no circumstances which 
might not have been expected at any time in 
connection with the use of the submarine 
against merchantmen, as the German Govern- 
ment has used it." Five Norwegian vessels 



210 AMEKICAS CASE AGAINST GEEMANY 

with Americans on board had been sunk, but 
the situation was practically the same as on 
February 3d when diplomatic relations had 
been broken, with the exception of the fact that 
ships were tied up in American ports because of 
the unwillingness of the owners to incur risk 
without adequate protection and a congestion 
of commerce was growing more serious every 
day. No "overt act" had occurred, but the ex- 
pressions of intention by the German authori- 
ties and press were not calculated to allay 
apprehension, and, "no thoughtful man can fail 
to see that the necessity for definite action may 
come at any time, if we are in fact, and not in 
word merely, to defend our elementary rights 
as a neutral nation. It would be most prudent 
to be unprepared. ' ' Mindful of the fact that 
the session of Congress was to expire almost 
immediately, President Wilson sought "to ob- 
tain from you full and immediate assurance of 
the authority which I may need at any moment 
to exercise, ' ' and declared : 

''No one doubts what it is our duty to do. We 
must defend our commerce and the lives of our peo- 
ple in the midst of the present trying circumstances, 



OVERT ACTS— WAR 211 

with discretion but with clear and steadfast purpose. 
Only the method and the extent remain to be chosen, 
upon the occasion, if occasion should indeed arise. 
Since it has unhappily proved impossible to safeguard 
our neutral rights by diplomatic means against the 
unwarranted infringements they are suffering at the 
hands of Germany, there may be no recourse but to 
armed neutrality, which we shall know how to main- 
tain and for which there is abundant American prec- 
edent. 

"It is devoutly to be hoped that it will not be 
necessary to put armed forces anywhere into action. 
The American people do not desire it, and our desire 
is not different from theirs. I am sure that they will 
understand the spirit in which I am now acting, the 
purpose I hold nearest my heart and would wish to 
exhibit in everything I do. I am anxious that the 
people of the nations at war also should understand 
and not mistrust us. I hope that I need give no fur- 
ther proofs and assurances than I have already given 
throughout nearly three years of anxious patience 
that I am the friend of peace and mean to preserve 
it for America so long as I am able. I am not now 
proposing or contemplating war or any steps that 
need lead to it. I merely request that you will accord 
me by your own vote and definite bestowal the means 
and the authority to safeguard in practice the right of 
a great people who are at peace and who are desirous 
of exercising none but the rights of peace to follow 



212 AMEKICA'S CASE AGAINST GEKMANY 

the pursuits of peace in quietness and good will — 
rights recognized time out of mind by all the civilized 
nations of the world. No course of my choosing or 
of theirs will lead to war. "War can come only by the 
willful acts and aggressions of others. 

". . . I request that you will authorize me to 
supply our merchant ships with defensive arms, 
should that become necessary, and with the means of 
using them, and to employ any other instrumentali- 
ties or methods that may be necessary and adequate 
to protect our ships and our people in their legitimate 
and peaceful pursuits on the seas. I request also 
that you will grant me at the same time, along with 
the powers I ask, a sufficient credit to enable me to 
provide adequate means of protection where they are 
lacking, including adequate insurance against the 
present war risks. 

"I have spoken of our commerce and of the legiti- 
mate errands of our people on the seas, but you will 
not be misled as to my main thought — the thought 
that lies beneath these phrases and gives them dignity 
and weight. It is not of material interests merely 
that we are thinking. It is, rather, of fundamental 
human rights, chief of all the right of life itself. 
I am thinking, not only of the rights of Americans 
to go and come about their proper business by way 
of the sea, but also of something much deeper, much 
more fundamental than that. I am thinking of those 
rights of humanity without which there is no civili- 



OVEET ACTS— WAR 213 

zation. My theme is of those great principles of com- 
passion and of protection which mankind has sought 
to throw about human lives, the lives of noncombat- 
ants, the lives of men who are peacefully at work 
keeping the industrial processes of the world quick 
and vital, the lives of women and children and of 
those who supply the labor which ministers to their 
sustenance. "We are speaking of no selfish material 
rights but of rights which our hearts support and 
whose foundation is that righteous passion for justice 
upon which all law, all structures alike of family, of 
state, and of mankind must rest, as upon the ultimate 
base of our existence and our liberty. I cannot imag- 
ine any man. with American principles at his heart 
hesitating to defend these things. ' ' 

A measure was immediately prepared by the 
Foreign Relations Committee and introduced in 
the Senate to carry out President Wilson's pol- 
icy of armed neutrality. It authorized the com- 
manders and crews of all merchant vessels bear- 
ing the registry of the United States "to arm 
and defend such vessels against unlawful at- 
tacks.' ' To the President was given power to 
supply such vessels with defensive arms, fore 
and aft, and "to employ such other instrumen- 
talities and methods as may in his judgment and 



214 AMERICA'S CASE AGAINST GERMANY 

discretion seem necessary and adequate to pro- 
tect such vessels and the citizens of the United 
States in their lawful and peaceful pursuits on 
the high seas." A bond issue of $100,000,000 
was authorized to pay the necessary expenses. 
The House Committee on Foreign Affairs was 
unable to reach an immediate agreement. A 
similar measure was before it, but opposition 
developed to granting the President the very 
broad power of employing "such other instru- 
mentalities and methods" as might be neces- 
sary, and it was urged also that the stipulation 
be made that the President should not protect 
ships carrying contraband of war. 

On February 28th, with the apparent inten- 
tion of rousing Congress to early action and 
informing the country of the dangers of the in- 
ternational situation and the consequences of 
the submarine warfare, the Administration 
made public a note from the German Foreign 
Minister to the German Minister in Mexico sug- 
gesting an offensive alliance with Japan against 
the United States. This remarkable communi- 
cation was as follows: 



OVERT ACTS— WAR 215 

"Berlin, Jan. 19, 1917. 

"On the 1st of February we intend to begin sub- 
marine warfare unrestricted. In spite of this, it is 
our intention to endeavor to keep neutral the United 
States of America. 

"If this attempt is not successful, we propose an 
alliance on the following basis with Mexico: That 
we shall make war together and together make peace. 
We shall give general financial support, and it is 
understood that Mexico is to reconquer the lost ter- 
ritory in New Mexico, Texas, and Arizona. The de- 
tails are left to you for settlement. 

'-You are instructed to inform the President of 
Mexico of the above in the greatest confidence as soon 
as it is certain that there will be an outbreak of 
war with the United States, and suggest that the 
President of Mexico, on his own initiative, should 
communicate with Japan suggesting adherence at 
once to this plan. At the same time, offer to mediate 
between Germany and Japan. 

"Please call to the attention of the President of 
Mexico that the employment of ruthless submarine 
warfare now promises to compel England to make 
peace in a few months. 

"ZlMMERMANN." 

The publication of this note diminished the 
opposition and the armed neutrality resolution 
passed the House of representatives on March 



216 AMEKICA'S CASE AGAINST GEEMANY 

1st by an overwhelming vote, but the rules of 
the Senate which failed to limit debate per- 
mitted "a group of willful men," in Mr. Wil- 
son's phrase, to prevent action before the time 
set for the Congress to come to an end. To 
call an immediate special session was futile on 
account of these rules, but at the extra session 
of the Senate held after the inauguration to 
pass upon nominations, the rules were radically 
revised, and an overwhelming majority of mem- 
bers in favor of a particular measure, as was 
the case with the armed neutrality resolution, 
will now be able to force a vote. On March 
9th, President Wilson issued a proclamation 
calling Congress in special session for April 
16th, the reason assigned being the necessity 
for a great variety of emergency legislation, 
but preparations for armed neutrality went on 
without legislative authorization and on March 
12th it was announced that the United States 
had "determined to place upon all American 
merchant vessels sailing through the barred 
areas an armed guard for the protection of the 
vessels and the lives of the persons on board." 
Meanwhile Germany continued to commit 



OVERT ACTS— WAR 217 

overt acts. Just before he started for the capi- 
tol to read his armed neutrality address to Con- 
gress, President Wilson received word of the 
sinking of the Laconia (February 25th) with 
the loss of twelve persons, among them two 
American citizens. On March 12th, the Ameri- 
can steamship Algonquin was sunk and four- 
teen Americans who were members of the crew 
had to spend twenty-six hours in open boats. 
On March 19th, the sinking of three American 
ships was announced. The City of Memphis, 
plainly marked by the American flag and with 
her name in letters that could be read three 
miles away, was bound from Cardiff for New 
York in ballast ; the Vigilancia bound for Havre 
with provisions, was torpedoed without warn- 
ing and fifteen of her crew lost their lives. The 
third American ship whose sinking was an- 
nounced was the Illinois, a tanker bound from 
Port Arthur, Texas, to London. 1 

1 Other submarine depredations which affected American in- 
terests were as follows: The sinking of the Aztec, an armed 
merchant vessel, was reported on April 2d, the day of Pres- 
ident Wilson's war message; the Healdton, an American oil 
ship, was sunk on March 22d, and of the twenty-one members 
of the crew who lost their lives, seven were Americans; two 
smaller American steamers were sunk in the Mediterranean on 



218 AMERICA'S CASE AGAINST GERMANY 

These sinkings showed that armed neutrality 
was inadequate. On March 21st, the President 
summoned Congress into special session on 
April 2d "to receive a communication by the 
Executive on grave questions of national pol- 
icy, which should be immediately taken under 
consideration, ' ' and steps were at once taken 
to mobilize the military and economic resources 
of the country for the prosecution of a war. 
Much had already been done. 

It was practically a foregone conclusion that 
President Wilson intended to ask Congress to 
declare the existence of a state of war. The 
pretense of armed neutrality was anomalous 
and inadequate. As Mr. Wilson pointed out in 

April 4th and 7th; four Belgian relief ships, carrying 17,000 
tons of food, were torpedoed. "On April 10 it was reported 
by the State Department that up to April 3, 1917, German sub- 
marines had sunk during the war 686 neutral vessels, including 
19 American, and attacked unsuccessfully 79 others, including 
8 American. Since the German war zone decree went into 
effect on Feb. 1 more than one-third of the vessels sunk were 
neutral, and a large number of other neutral vessels were ter- 
rorized into staying in port. The neutral vessels sunk were as 
follows : 

"Norwegian, 410; Swedish, 111; Dutch, 61; Greek, 50; Span- 
ish, 2; Argentine, 1; Brazilian, 1; American, 8. Total, 79." 

The New York Times Current History, Vol. VI, p. 239 (May, 
1917). 



OVERT ACTS— WAR 219 

his address, Germany would probably have the 
effrontery to treat American ships that were 
armed as pirates. Again, the use of force 
against one belligerent and not against the 
other in order to maintain neutral rights, was 
difficult of comprehension and was not given the 
support that would be accorded a declaration 
of war. Particularly was this the case with 
regard to munitions. Senator Stone repre- 
sented a good deal more than his own opinion 
when he sought to amend the armed ship bill 
so that the United States could not arm or con- 
voy vessels carrying absolute contraband to 
Great Britain or her allies. A large number of 
Americans believed that Germany was justified 
in taking any measures to stop shipments of 
munitions from reaching her enemies, and that 
the United States should not use force to pro- 
tect her citizens engaged in this trade. They 
could not understand the justice of the indis- 
putable principles of international law for 
which the United States had contended: That 
the trade in such articles should continue, sub- 
ject to the belligerent rights of blockade, cap- 
ture, visit and search, with the lives of the crew 



220 AMERICA'S CASE AGAINST GERMANY 

being safe-guarded in every case. And if an 
armed munition ship had been destroyed by a 
German submarine, there would, I venture, have 
been no great outcry from American opinion 
and no overwhelming decision that the final 
overt act had occurred and war was the only 
possible resort. There has seemed to be a 
curious mental vacuity on the justice of the 
assertion that the crew of a munition ship have 
rights identical with those of a passenger liner, 
if both are unresisting, or if both resist the 
exercise of the belligerent authority. This was 
a very weak feature of our armed neutrality. 
On the other hand, wanton acts like the sinking 
of the Lusitania and Laconia appealed to the 
people as justifying war by the United States. 
If by reason of these overt acts war were em- 
barked upon, then public opinion would sanc- 
tion any measures which would contribute to the 
defeat of Germany; and the peculiar status 
which munition ships occupy in the popular 
mind would be done away with, for insuring 
their passage would be one of our contributions 
to the conduct of the war. 

Armed neutrality, furthermore, could not 



OVERT ACTS— WAR 221 

protect Americans on board of belligerent mer- 
chant vessels. Should our sole answer to the 
German threats be the arming of our own ves- 
sels? Should we sit by quiescent when — as 
would certainly be the case unless the English 
measures against the submarines were extraor- 
dinarily successful — American citizens con- 
tinued to lose their lives through the sinking of 
belligerent vessels? And, finally, so long as the 
United States maintained a pretense of neu- 
trality, it would be more difficult to punish of- 
fenses against the Government. It is not pos- 
sible constitutionality, while we are at peace, 
to put within federal jurisdiction all the activi- 
ties of German agents in this country ; we have 
even witnessed the ridiculously impotent expe- 
dient of attempting to punish plotters under the 
Sherman anti-trust law. More than that, rig- 
orous definition and severe punishment for the 
acts which ought to be prohibited would be 
much more palatable to our liberty loving ideals 
if the country were actually at war and the 
punishment were for giving aid and comfort to 
the enemies of the United States — in short, for 
treason. The defense of the realm from the ac- 



222 AMERICA'S CASE AGAINST GERMANY 

tivities of German agents within our territory 
would be easier from both standpoints if we 
abandoned an attempt to remain neutral. 

All that I have said omitted a fundamental 
consideration: That the cause of the Allies is 
the cause of the United States ; that our inter- 
ests would be subserved by their speedy vic- 
tory and that our interests would be menaced 
by their defeat; that it is our moral duty to 
give them what assistance we can in order to 
insure their success, irrespective of our griev- 
ances against Germany for her murder of 
American citizens. This was in part adverted 
to by Mr. Wilson when he addressed Congress. 
The submarine warfare was against all man- 
kind, against all nations; and in entering the 
conflict we would be "but one of the champions 
of the rights of mankind,' ' fighting "for de- 
mocracy, for the right of those who submit to 
authority to have a voice in their own gov- 
ernments, for the rights and liberties of small 
nations, for a universal dominion of right by 
such a concert of free peoples as shall bring 
peace and safety to all nations and make the 
world itself at last free." 



OVERT ACTS— WAR 223 

Four days after the President's address, both 
Houses of Congress passed the joint resolution 
declaring that whereas the Imperial German 
Government had committed repeated acts of 
war against the United States, the state of war 
thus forced upon this country was formally de- 
clared, and the President was directed ' ' to em- 
ploy the entire naval and military forces of the 
United States and the resources of the Govern- 
ment to carry on war against the Imperial Ger- 
man Government ; and to bring the conflict to a 
successful termination all the resources of the 
country are hereby pledged by the Congress of 
the United States.' ' This resolution was the 
formal declaration of the fifth war in which the 
United States had ever engaged with a foreign 
power. 



CHAPTER XII 

THE RIGHT OF RETALIATION 

In view of the measured indictments which 
one after another Mr. Wilson's notes furnish of 
the German methods and of the ethically and 
legally justifiable ground for hostile measures 
on the part of the United States, it is unneces- 
sary here to attempt any exhaustive summary. 
The list of American ships destroyed, the cal- 
lous disregard of the nature of their nationality, 
passengers, and cargo, the destruction of ves- 
sels carrying women and children with the loss 
of many lives, and the final announcement of an 
unrestricted campaign of frightfulness have all 
been set forth. It only remains to comment on 
one phase of the controversy — namely, the lack 
of justification for reprisals like those of Ger- 
many, and the apparent lenience with which the 
United States has treated the British interfer- 
ences with our trade. 

224 



THE EIGHT OF KETALIATION 225 

Both the British Orders in Council stopping 
trade to the Central Powers, and the German 
war zone decrees allege that they are proper 
retaliations for disregard of international law 
on the part of the enemy. The United States 
in its Lusitania note of Jnly 21, 1915, answered 
this claim by asserting that "a belligerent act 
of retaliation is per se an act beyond the law, 
and the defense of an act as retaliatory is an 
admission that it is illegal." Now, reprisals 
are recognized belligerent rights and it is only 
to be expected that neutrals may to some extent 
be injured. But, there is a vast difference be- 
tween a reprisal aimed directly at the enemy 
and calculated to have immediate effect on the 
conduct of the war, which incidentally affects 
neutrals, and one which is not directed against 
the armed forces of the enemy at all but wan- 
tonly and immediately kills or injures neutrals 
and noncombatants. As a recent writer of au- 
thority has said : 

"Through reprisal and counter-reprisal, each ex- 
ceeding the other in barbarity, war would inevitably 
revert to its most primitive form, and there would be 
nothing to prevent a final burning of prisoners at 



226 AMERICA'S CASE AGAINST GERMANY 

the stake. Nor should overbidding be permitted in 
reprisals which tend to injure neutrals. An act of 
reprisal must not involve a more serious impairment 
of neutral rights than the alleged offense for which 
the reprisal is taken. For otherwise, through re- 
prisal and counter-reprisal, all neutral rights might 
eventually disappear in such a world-war as is now 
raging. 

"If our Government had taken this position, it 
would, I think, have enlisted the support of all neu- 
trals, and its suggestions would probably have been 
accepted, at least after the establishment of peace, 
by all the countries now at war. And it would have 
found a clear and tenable ground on which to protest 
against the German 'war zone' proclamation. Ap- 
plying the principles suggested, it could have said to 
Germany: Your proposal to sacrifice non-combatant 
lives and to endanger the lives of neutrals is not 
a legitimate retaliation for any measure, however il- 
legal, which Great Britain has adopted ; for the taking 
of life is no proper retaliation for the taking of 
goods. ' n 

In this important distinction we find the an- 
swer to the argument that we have treated Eng- 
land more leniently than Germany. Great Brit- 
ain has had an almost absolute command of the 

1 Munro Smith, ' ' American Diplomacy in the European 
War, ' ' Political Science Quarterly, Vol. XXXI, pp. 481, 508. 



THE RIGHT OF RETALIATION 227 

sea and she has very largely extinguished neu- 
tral trading rights. Against this action we made 
only feeble protests while Germany we an- 
swered with a threat of war. The difference is 
to be found in considerations of humanity, for 
England's restrictions upon trade have not 
caused the loss of a single life while the sub- 
marine campaign has resulted in the death of 
more than two thousand noncombatants. Kous- 
seau first put emphasis upon war as a struggle 
between States and their armed forces and this 
gave rise to the distinction between combatants 
and noncombatants. The disregard of this dis- 
tinction by Germany is the real cause of our 
answering her with acts and not words ; had her 
reprisals been comparable in degree and hu- 
manity with those of England, we would simply 
have protested and would have laid a basis for 
claims in damages after the conclusion of the 
war. 

But this takes no account of the German plea 
that the submarine campaign is a proper reply 
to the criminal and illegal attempt of England 
to starve Germany into submission through 
stopping all trade, or that the submarine is a 



228 AMERICA'S CASE AGAINST GERMANY 

new weapon and that the old rules concerning 
the destruction of prizes are inapplicable. Thus 
Ambassador BernstorfPs note of January 31, 
1917, protests that for two and a half years 
England had been " using her naval power for 
a criminal attempt to force Germany into sub- 
mission by starvation, ' ' this being "in brutal 
contempt of international law." And in the 
note which he presented to the State Depart- 
ment on March 8, 1916, he said that "in order 
to fight her opponents' measures, which were 
absolutely contrary to international law, she 
chose for this purpose a new weapon, the use 
of which had not yet been regulated by inter- 
national law, and, in doing so, could and did not 
violate any existing rules but only took into ac- 
count the peculiarity of the new weapon, the 
submarine boat." 

In answer to these claims attention should be 
directed to the able comment of Lord Robert 
Cecil, British Blockade Minister, made at the 
time of the exchanges with Germany over the 
Sussex. Lord Robert declared that 

"So far as is known, the measures taken by Great 
Britain against German trade have cost no neutral 



THE RIGHT OF RETALIATION 229 

life. Great Britain maintains that they are in accord 
with the principles of international law and is pre- 
pared to make good that claim. They can surely 
compare favorably, so far as consideration to neu- 
trals is concerned, with a policy whose fruits are 
seen in the tragedies of the Lusitania, the Arabic, 
and the Sussex." 

In answer to the plea that British trade re- 
strictions compelled Germany to resort to the 
submarine campaign, he set out the following 
incidents : 

"September, 1914.— Dutch vessel Maria, from Cal- 
ifornia for Dublin and Belfast with cargo of grain for 
the civil population, sunk by the German cruiser 
Karlsruhe. 

"Oct. 26, 1914.— The Admiral Ganteaume, with 
2,000 unarmed refugees, sunk by a German sub- 
marine. 

"December, 1914.— Admiral von Tirpitz foreshad- 
owed adoption of submarine campaign. 

"Jan. 27, 1915.— American ship William P. Frye, 
with wheat from Seattle for Queenstown, sunk by 
German auxiliary cruiser Kronprinz Wilhelm. [The 
William P. Frye was sunk by the Prim Eitel Fried- 
rich, according to the records.] 

"Feb. 4, 1915.— Declaration by the German Gov- 
ernment of their intention to institute a general sub- 



,' 



230 AMEEICA'S CASE AGAINST GEEMANY 

marine blockade of Great Britain and Ireland, with 
the avowed purpose of cutting off all supplies from 
these islands. This blockade was put into effect offi- 
cially Feb. 18, although, as a matter of fact, a mer- 
chant ship had been sunk by a German submarine at 
the end of January. 

Not until March 11, 1915, did Great Britain 
attempt to cut off German trade absolutely and 
before that time submarine outrages had taken 
place. 2 Noncombatants in Germany, further- 
more, were not suffering so very severely, since 
the German Chancellor had recently declared : 

1 ' Our enemies forget that, thanks to the organizing 
powers of the whole nation, Germany is equal to the 
task of the distribution of victuals. Our stocks of 
bread and grain will not only be sufficient, but will 
leave an ample reserve with which to commence the 
new year. We have not run short of anything in the 
past, nor shall we run short of anything in the fu- 
ture. " 

Nevertheless, assuming that there was actual 
want in Germany it was a legitimate method of 

3 "As for their pretended tenderness for noncombatants," 
said Lord Robert, ' ' their slaughter of old men, children, women, 
and girls in Belgium and Northern France, not to speak of the 
unreported proceedings of their honored allies in Armenia, for- 
ever prevents them from being heard in such a cause. ' ' 



THE EIGHT OF EETALIATION 231 

warfare. In view of the use of Zeppelin bombs, 
poisoned gas, and submarine torpedoes, not to 
speak of atrocities, the German authorities, 
Lord Robert concluded, presumed "too far on 
the toleration of mankind when they complain 
of such a comparatively humane method of war- 
fare as blockade. ,, 

The speciousness of the claim that the sub- 
marine, being a new engine of warfare, is an 
exception to established rules, and is subject to 
no restraints, has been pointed out in several of 
the American notes to Germany and needs only 
a bare mention here. As has been well said : 

"In the use of a new weapon a belligerent nation 
may unquestionably violate well-recognized rules of 
international law. The armored tractor cars recently 
introduced by the British, for example, are new 
weapons, the use of which has not been regulated by 
international law; but it does not follow that Great 
Britain could lawfully use these new weapons to de- 
stroy enemy field hospitals. 

"In using its submarines against merchant ships, 
Germany in fact invokes established rules of inter- 
national law. It claims for submarines the rights ac- 
corded to cruisers. Cruisers have the right to capture 
enemy vessels and neutral vessels carrying contra- 



232 AMERICA'S CASE AGAINST GERMANY 

band. Whenever it is impossible or even inexpedient 
to take a captured vessel into any of the captor 's home 
ports for condemnation, it is permissible to sink it. 
Due provision, however, must always be made for the 
safety of the noncombatants, the crew and any pas- 
sengers. ' ' 3 

America's case against Germany, then, rests 
upon the ground, as Mr. Wilson said in his ad- 
dress to Congress, that American ships and 
American lives have been sacrificed by naval 
commanders "in needless contravention of the 
just and reasonable understandings of interna- 
tional law and the obvious dictates of human- 
ity.' ' All that the United States seeks is to 
vindicate its claims to "liberty and justice and 
an unmolested life," and this could only be 
accomplished by going to war with the Power 
which has sought to prevent the enthronement 
of public right as the guiding principle of the 
relations between states. The submarine cam- 
paign was simply the one manifestation of hos- 
tility to this ideal which was sufficient to bring 
in American Democracy on the side of England 

■Smith, " American Diplomacy, " Political Science Quarterly, 
Vol. XXXI, p. 495. 



THE RIGHT OF RETALIATION 233 

and France and Eussia. As I pointed out in the 
very beginning, it is fundamental; but for the 
insistence upon this weapon by Germany we 
would probably still be at peace, in spite of the 
terrible set-back to our moral and political 
ideals and the dangerous menace to our safety 
which the defeat of the* Allies would have in- 
dubitably meant. Yet we should not forget the 
eloquent words of M. Rene Viviani, French Min- 
ister of Justice, and head of the French War 
Commission to the United States: 

"Yes; doubtless you had your slaughtered dead to 
avenge, to avenge the insults heaped on your honor. 
You could not for one moment conceive that the land 
of Lincoln, the land of Washington, could bow hum- 
bly before the imperial eagle. But not for that did 
you rise ; not for your national honor alone ; do not 
say it was for that. You are fighting for the whole 
world ; you are fighting for all liberty ; you are fight- 
ing for civilization; that is why you have risen in 
battle. " It is against ' ' a whole race so madly intox- 
icated with conceit that it imagines it is predestined 
to dominate the world and is amazed to see free men 
rise and contest its rights. . . . And when in far- 
off days after this war history shall tell why we 
fought ... it will say why all the peoples rose in 



234 AMERICA'S CASE AGAINST GERMANY 

battle, why the free allied peoples fought. Not for 
conquest! They were not nations of prey. No mor- 
bid ambitions lay festering in their hearts and con- 
sciences. Why then did they fight? To repel the 
most brutal and insidious of aggressions. They 
fought for the respect of international treaties tram- 
pled under foot by the brutal soldiery of Germany; 
they fought to raise all peoples of the earth to free 
breath, to the ideal of liberty for all, so that the world 
might be habitable for free men — or to perish.' ' 

That Mr. Wilson has been one of our most 
peace-loving presidents, history will not dis- 
pute. As the foregoing pages abundantly show, 
opportunity after opportunity was offered the 
Imperial Government of Germany to renounce 
lawlessness and to cease invasions of our sov- 
ereignty just as real as the landing of an army. 
The President's peace note of December called 
in vain for a definition of aims which would 
deny the intended subjugation of small states 
or a great German Empire under which liberty 
would perish. Armed neutrality, or a technical 
state of war with naval cooperation, money, and 
supplies would have sufficed if America had 
gone in only because her honor had been vio- 
lated, her citizens murdered. Bui to send to 



THE EIGHT OF EETALIATION 235 

Prance our finest men, in unlimited numbers 
secured on the basis of compulsory service; 
to pledge all the resources of the country, as 
did the congressional resolution declaring war 
— such a readiness for sacrifice means that 
America is not merely safeguarding her rights, 
but it means that America, in M. Viviani's 
phrase again, will "battle till the end for the 
deliverance of humanity, for the deliverance 
of democracy. ,, Perhaps Woodrow Wilson 
waited wisely until the issue had been made 
translucently clear — until the liberalization of 
Russia removed the only anomaly and made the 
battle one of free nations against a would-be 
assassin of humanity, democracy, and the fu- 
ture peace of the world. 



APPENDIX I 

PRESIDENT WILSON *S ADDRESS TO CONGRESS, APRIL 

2, 1917, ASKING FOR A DECLARATION THAT 

A STATE OF WAR EXISTED 

Gentlemen of the Congress : I have called 
the. Congress into extraordinary session because 
there are serious, very serious, choices of policy 
to be made, and made immediately, which it 
was neither right nor constitutionally permis- 
sible that I should assume the responsibility of 
making. 

On the third of February last I officially laid 
before you the extraordinary announcement of 
the Imperial German Government that on and 
after the first day of February it was its pur- 
pose to put aside all restraints of law or of 
humanity and use its submarines to sink every 
vessel that sought to approach either the ports 
of Great Britain and Ireland or the western 
coasts of Europe or any of the ports controlled 
by the enemies of Germany within the Mediter- 

237 



238 AMERICA'S CASE AGAINST GERMANY 

ranean. That had seemed to be the object of 
the German submarine warfare earlier in the 
war, but since April of last year the Imperial 
Government had somewhat restrained the com- 
manders of its undersea craft in conformity 
with its promise then given to us that passenger 
boats should not be sunk and that the warning 
would be given to all other vessels which its 
submarines might seek to destroy, when no re- 
sistance was offered or escape attempted, and 
care taken that their crews were given at least 
a fair chance to save their lives in their open 
boats. The precautions taken were meagre and 
haphazard enough, as was proved in distressing 
instance after instance in the progress of the 
cruel and unmanly business, but a certain de- 
gree of restraint was observed. The new pol- 
icy has swept every restriction aside. Vessels 
of every kind, whatever their flag, their char- 
acter, their cargo, their destination, their er- 
rand, have been ruthlessly sent to the bottom 
without warning and without thought of help 
or mercy for those on board, the vessels of 
friendly neutrals along with those of belliger- 
ents. Even hospital ships and ships carrying 



APPENDIX 239 

relief to the sorely bereaved and stricken peo- 
ple of Belgium, though the latter were pro- 
vided with safe conduct through the prescribed 
areas by the German Government itself and 
were distinguished by unmistakable marks of 
identity, have been sunk with the same reckless 
lack of compassion or of principle. 

I was for a little while unable to believe that 
such things would in fact be done by any gov- 
ernment that had hitherto subscribed to the 
humane practices of civilized nations. Interna- 
tional law had its origin in the attempt to set up 
some law which would be respected and ob- 
served upon the seas, where no nation had right 
of dominion, and where lay the free highways 
of the world. By painful stage after stage has 
that law been built up, with meager enough re- 
sults, indeed, after all was accomplished that 
could be accomplished, but always with a clear 
view, at least, of what the heart and conscience 
of mankind demanded. This minimum of right 
the German Government has swept aside under 
the plea of retaliation and necessity and be- 
cause it had no weapons which it could use at 
sea except these which it is impossible to em- 



240 AMERICA'S CASE AGAINST GERMANY 

ploy as it is employing them without throwing 
to the winds all scruples of humanity or of re- 
spect for the understandings that were sup- 
posed to underlie the intercourse of the world. 
I am not now thinking of the loss of property 
involved, immense and serious as that is, but 
only of the wanton and wholesale destruction 
of the lives of noncombatants, men, women, and 
children, engaged in pursuits which have al- 
ways, even in the darkest periods of modern his- 
tory, been deemed innocent and legitimate. 
Property can be paid for ; the lives of peaceful 
and innocent people cannot be. The present 
German submarine warfare against commerce is 
a warfare against mankind. 

It is a war against all nations. American 
ships have been sunk, American lives taken, in 
ways which it has stirred us very deeply to 
learn of, but the ships and people of other neu- 
tral and friendly nations have been sunk and 
overwhelmed in the waters in the same way. 
There has been no discrimination. The chal- 
lenge is to all mankind. Each nation must de- 
cide for itself how it will meet it. The choice 
we make for ourselves must be made with a 



APPENDIX 241 

moderation of counsel and a temperateness of 
judgment befitting our character and our mo- 
tives as a nation. We must put excited feeling 
away. Our motive will not be revenge or the 
victorious assertion of the physical might of 
the nation, but only the vindication of right, of 
human right, of which we are only a single 
champion. 

When I addressed the Congress on the twen- 
ty-sixth of February last I thought that it would 
suffice to assert our neutral rights with arms, 
our right to use the seas against unlawful in- 
terference, our right to keep our people safe 
against unlawful violence. But armed neutral- 
ity, it now appears, is impracticable. Because 
submarines are in effect outlaws when used as 
the German submarines have been used against 
merchant shipping, it is impossible to defend 
ships against their attacks as the law of nations 
has assumed that merchantmen would defend 
themselves against privateers or cruisers, vis- 
ible craft giving chase upon the open sea. It is 
common prudence in such circumstances, grim 
necessity indeed, to endeavor to destroy them 
before they have shown their own intention. 



242 AMERICA'S CASE AGAINST GERMANY 

They must be dealt with upon sight, if dealt 
with at all. The German Government denies 
the right of neutrals to use arms at all within 
the areas of the sea which it has proscribed, 
even in the defense of rights which no modern 
publicist has ever before questioned their right 
to defend. The intimation is conveyed that the 
armed guards which we have placed on our mer- 
chant ships will be treated as beyond the pale 
of law and subject to be dealt with as pirates 
would be. Armed neutrality is ineffectual 
enough at best; in such circumstances and in 
the face of such pretensions it is worse than 
ineffectual: it is likely only to produce what it 
was meant to prevent; it is practically certain 
to draw us into the war without either the 
rights or the effectiveness of belligerents. 
There is one choice we cannot make, we are in- 
capable of making : we will not choose the path 
of submission and suffer the most sacred rights 
of our nation and our people to be ignored or 
violated. The wrongs against which we now 
array ourselves are no common wrongs; they 
cut to the very roots of human life. 
With a profound sense of the solemn and even 



APPENDIX 243 

tragical character of the step I am taking and 
of the grave responsibilities which it involves, 
but in unhesitating obedience to what I deem 
my constitutional duty, I advise that the Con- 
gress declare the recent course of the Imperial 
German Government to be in fact nothing less 
than war against the Government and people of 
the United States; that it formally accept the 
status of belligerent which has thus been thrust 
upon it; and that it take immediate steps not 
only to put the country in a more thorough state 
of defense but also to exert all its power and 
employ all its resources to bring the Govern- 
ment of the German Empire to terms and end 
the war. 

What this will involve is clear. It will involve 
the utmost practicable cooperation in counsel 
and action with the governments now at war 
with Germany, and, as incident to that, the ex- 
tension to those governments of the most liberal 
financial credits, in order that our resources 
may so far as possible be added to theirs. It 
will involve the organization and mobilization 
of all the material resources of the country to 
supply the materials of war and serve the inci- 



244 AMERICA'S CASE AGAINST GERMANY 

dental needs of the nation in the most abundant 
and yet the most economical and efficient way 
possible. It will involve the immediate full 
equipment of the navy in all respects but par- 
ticularly in supplying it with the best means of 
dealing with the enemy's submarines. It will 
involve the immediate addition to the armed 
forces of the United States already provided for 
by law in case of war at least five hundred thou- 
sand men, who should, in my opinion, be chosen 
upon the principle of universal liability to serv- 
ice, and also the authorization of subsequent 
additional increments of equal force so soon as 
they may be needed and can be handled in train- 
ing. It will involve, also, of course, the grant- 
ing of adequate credits to the Government, sus- 
tained, I hope, so far as they can equitably be 
sustained by the present generation, by well 
conceived taxation. 

I say sustained so far as may be equitable by 
taxation because it seems to me that it would 
be most unwise to base the credits which will 
now be necessary entirely on money borrowed. 
It is our duty, I most respectfully urge, to pro- 
tect our people so far as we may against the 



APPENDIX 245 

very serious hardships and evils which would be 
likely to arise out of the inflation which would 
be produced by vast loans. 

In carrying out the measures by which these 
things are to be accomplished we should keep 
constantly in mind the wisdom of interfering as 
little as possible in our own preparation and 
in the equipment of our own military forces 
with the duty, — for it will be a very practical 
duty, — of supplying the nations already at war 
with Germany with the materials which they 
can obtain only from us or by our assistance. 
They are in the field and we should help them 
in every way to be effective there. 

I shall take the liberty of suggesting, through 
the several executive departments of the Gov- 
ernment, for the consideration of your commit- 
tees, measures for the accomplishment of the 
several objects I have mentioned. I hope that it 
will be your pleasure to deal with them as hav- 
ing been framed after very careful thought by 
the branch of the Government upon which the 
responsibility of conducting the war and safe- 
guarding the nation will most directly fall. 

While we do these things, these deeply mo- 



246 AMERICA'S CASE AGAINST GERMANY 

mentous things, let us be very clear, and make 
very clear to all the world what our motives and 
our objects are. My own thought has not been 
driven from its habitual and normal course by 
the unhappy events of the last two months, and 
I do not believe that the thought of the nation 
has been altered or clouded by them. I have 
exactly the same things in mind now that I had 
in mind when I addressed the Senate on the 
twenty-second of January last; the same that 
I had in mind when I addressed the Congress 
on the third of February and on the twenty- 
sixth of February. Our object now, as then, is 
to vindicate the principles of peace and justice 
in the life of the world as against selfish and 
autocratic power and to set up amongst the 
really free and self-governed peoples of the 
world such a concert of purpose and of action as 
will henceforth ensure the observance of those 
principles. Neutrality is no longer feasible or 
desirable where the peace of the world is in- 
volved and the freedom of its peoples, and the 
menace to that peace and freedom lies in the 
existence of autocratic governments backed by 
organized force which is controlled wholly by 



APPENDIX 247 

their will, not by the will of their people. We 
have seen the last of neutrality in such circum- 
stances. We are at the beginning of an age 
in which it will be insisted that the same stand- 
ards of conduct and of responsibility for wrong 
done shall be observed among nations and their 
governments that are observed among the indi- 
vidual citizens of civilized states. 

We have no quarrel with the German people. 
We have no feeling towards them but one of 
sympathy and friendship. It was not upon 
their impulse that their Government acted in 
entering this war. It was not with their previ- 
ous knowledge or approval. It was a war de- 
termined upon as wars used to be determined 
upon in the old, unhappy days when peoples 
were nowhere consulted by their rulers and 
wars were provoked and waged in the interest 
of dynasties or of little groups of ambitious 
men who were accustomed to use their fellow 
men as pawns and tools. Self -governed nations 
do not fill their neighbor states with spies or set 
the course of intrigue to bring about some crit- 
ical posture of affairs which will give them an 
opportunity to strike and make conquest. Such 



248 AMERICA'S CASE AGAINST GERMANY 

designs can be successfully worked out only 
under cover and where no one has the right to 
ask questions. Cunningly contrived plans of de- 
ception or aggression, carried, it may be, from 
generation to generation, can be worked out and 
kept from the light only within the privacy of 
courts or behind the carefully guarded confi- 
dences of a narrow and privileged class. They 
are happily impossible where public opinion 
commands and insists upon full information 
concerning all the nation's affairs. 

A steadfast concert for peace can never be 
maintained except by a partnership of demo- 
cratic nations. No autocratic government could 
be trusted to keep faith within it or observe its 
covenants. It must be a league of honor, a part- 
nership of opinion. Intrigue would eat its vitals 
away; the plottings of inner circles who could 
plan what they would and render account to no 
one would be a corruption seated at its very 
heart. Only free peoples can hold their purpose 
and their honor steady to a common end and 
prefer the interests of mankind to any narrow 
interest of their own. 

Does not every American feel that assurance 



APPENDIX 249 

has been added to our hope for the future peace 
of the world by the wonderful and heartening 
things that have been happening within the last 
few weeks in Russia? Russia was known by 
those who knew it best to have been always in 
fact democratic at heart, in all the vital habits 
of her thought, in all the intimate relationships 
of her people that spoke their natural instinct, 
their habitual attitude towards life. The au- 
tocracy that crowned the summit of her political 
structure, long as it had stood and terrible as 
was the reality of its power, was not in fact 
Russian in origin, character, or purpose; and 
now it has been shaken off and the great, gen- 
erous Russian people have been added in all 
their naive majesty and might to the forces that 
are fighting for freedom in the world, for jus- 
tice, and for peace. Here is a fit partner for a 
League of Honor. 

One of the things that has served to convince 
us that the Prussian autocracy was not and 
could never be our friend is that from the very 
outset of the present war it has filled our un- 
suspecting communities and even our offices of 
government with spies and set criminal in- 



250 AMERICA'S CASE AGAINST GERMANY 

trigues everywhere afoot against our national 
unity of counsel, our peace within and without, 
our industries and our commerce. Indeed it is 
now evident that its spies were here even before 
the war began ; and it is unhappily not a matter 
of conjecture but a fact proved in our courts 
of justice that the intrigues which have more 
than once come perilously near to disturbing the 
peace and dislocating the industries of the coun- 
try have been carried on at the instigation, with 
the support, and even under the personal direc- 
tion of official agents of the Imperial Govern- 
ment accredited to the Government of the 
United States. Even in checking these things 
and trying to extirpate them we have sought to 
put the most generous interpretation possible 
upon them because we knew that their source 
lay, not in any hostile feeling or purpose of the 
German people towards us (who were, no doubt, 
as ignorant of them as we ourselves were), but 
only in the selfish designs of a Government that 
did what it pleased and told its people nothing. 
But they have played their part in serving to 
convince us at last that that Government enter- 
tains no real friendship for us and means to act 



APPENDIX 251 

against our peace and security at its conven- 
ience. That it means to stir up enemies against 
us at our very doors the intercepted note to the 
German Minister at Mexico City is eloquent 
evidence. 

We are accepting this challenge of hostile 
purpose because we know that in such a govern- 
ment, following such methods, we can never 
have a friend; and that in the presence of its 
organized power, always lying in wait to accom- 
plish we know not what purpose, there can be 
no assured security for the democratic govern- 
ments of the world. We are now about to ac- 
cept gauge of battle with this natural foe to lib- 
erty and shall, if necessary, spend the whole 
force of the nation to check and nullify its pre- 
tensions and its power. We are glad, now that 
we see the facts with no veil of false pretense 
about them, to fight thus for the ultimate peace 
of the world and for the liberation of its peo- 
ples, the German peoples included: for the 
rights of nations great and small and the priv- 
ilege of men everywhere to choose their way of 
life and of obedience. The world must be made 
safe for democracy. Its peace must be planted 



252 AMERICA'S CASE AGAINST GERMANY 

upon the tested foundations of political liberty. 
We have no selfish ends to serve. We desire no 
conquest, no dominion. We seek no indemnities 
for ourselves, no material compensation for the 
sacrifices we shall freely make. We are but one 
of the champions of the rights of mankind. We 
shall be satisfied when those rights have been 
made as secure as the faith and the freedom of 
nations can make them. 

Just because we fight without rancor and 
without selfish object, seeking nothing for our- 
selves but what we shall wish to share with all 
free peoples, we shall, I feel confident, conduct 
our operations as belligerents without passion 
and ourselves observe with proud punctilio the 
principles of right and of fair play we profess 
to be fighting for. 

I have said nothing of the governments allied 
with the Imperial Government of Germany be- 
cause they have not made war upon us or chal- 
lenged us to defend our right and our honor. 
The Austro-Hungarian Government has, indeed, 
avowed its unqualified endorsement and accep- 
tance of the reckless and lawless submarine 
warfare adopted now without disguise by the 



APPENDIX 253 

Imperial German Government, and it has there- 
fore not been possible for this Government to 
receive Count Tarnowski, the Ambassador re- 
cently accredited to this Government by the Im- 
perial and Royal Government of Austria-Hun- 
gary; but that government has not actually en- 
gaged in warfare against citizens of the United 
States on the seas, and I take the liberty, for the 
present at least, of postponing a discussion of 
our relations with the authorities at Vienna. 
We enter this war only where we are clearly 
forced into it because there are no other means 
of defending our rights. 

It will be all the easier for us to conduct our- 
selves as belligerents in a high spirit of right 
and fairness because we act without animus, not 
in enmity towards a people or with the desire 
to bring any injury or disadvantage upon them, 
but only in armed opposition to an irresponsible 
government which has thrown aside all consid- 
erations of humanity and of right and is run- 
ning amuck. We are, let me say again, the sin- 
cere friends of the German people, and shall 
desire nothing so much as the early reestablish- 
ment of intimate relations of mutual advantage 



254 AMERICA'S CASE AGAINST GERMANY 

between us, — however hard it may be for them, 
for the time being, to believe that this is spoken 
from our hearts. We have borne with their 
present government through all these bitter 
months because of that friendship, — exercising 
a patience and forbearance which would other- 
wise have been impossible. We shall, happily, 
still have an opportunity to prove that friend- 
ship in our daily attitude and actions towards 
the millions of men and women of German birth 
and native sympathy who live amongst us and 
share our life, and we shall be proud to prove 
it towards all who are in fact loyal to their 
neighbors and to the Government in the hour 
of test. They are, most of them, as true and 
loyal Americans as if they had never known any 
other fealty or allegiance. They will be prompt 
to stand with us in rebuking and restraining 
the few who may be of a different mind and pur- 
pose. If there should be disloyalty, it will be 
dealt with with a firm hand of stern repression ; 
but, if it lifts its head at all, it will lift it only 
here and there without countenance except from 
a lawless and malignant few. 

It is a distressing and oppressive duty, Gen- 



APPENDIX 255 

tlemen of the Congress, which I have performed 
in thus addressing you. There are, it may be, 
many months of fiery trial and sacrifice ahead 
of us. It is a fearful thing to lead this great 
peaceful people into war, into the most terrible 
and disastrous of all wars, civilization itself 
seeming to be in the balance. But the right is 
more precious than peace, and we shall fight for 
the things which we have always carried near- 
est our hearts, — for democracy, for the right of 
those who submit to authority to have a voice 
in their own governments, for the rights and 
liberties of small nations, for a universal do- 
minion of right by such a concert of free peo- 
ples as shall bring peace and safety to all na- 
tions and make the world itself at last free. /r To 
such a task we can dedicate our lives and our 
fortunes, everything that we are and everything 
that we have, with the pride of those who know 
that the day has come when America is priv- 
ileged to spend her blood and her might for the 
principles that gave her birth and happiness 
and the peace which she has treasured. God 
helping her, she can do no other. 



APPENDIX II 



The following memorandum 1 has been pre- 
pared by the Department of State to show the 
submarine outrages which have directly affected 
American interests: 

American ships damaged or destroyed by German submarines. 



Name of Vessel. 


Date. 


Particulars. 


Gulflight 

Nebraskan 

Leelanaw 

Seaconnet 


May 2, 1915 
May 25, 1915 
July 25, 1915 
June 16, 1916 
Aug. 14, 1916 

Oct. 28, 1916 
Nov. 7, 1916 
Nov. 26, 1916 
Dec. 10, 1916 
Dec. 14, 1916 
Jan. 9, 1917 
Feb. 3, 1917 
Feb. 13, 1917 
Mar. 16, 1917 
Mar. 17, 1917 

do 

Apr. 1, 1917 


Torpedoed. 

Torpedoed and shelled. 
Damaged by mine or torpedo. 
Fired on 10 times by subma- 




rine. 
Sunk by submarine. 


Columbian 

Colena _ 

St. Helen's 


Do 
Fired on. 

Attacked by submarine. 
Fired on; slight damage. 


Sacramento „ 


Fired on. 
Sunk. 




Burned by submarine. 


Vigilancia 


Torpedoed. 
Sunk by gunfire. 


Illinois _ 

Aztec - 


Torpedoed. 
Do. 



SHIPS SUNK WITH LOSS OF AMERICAN LIVES 

British ship Falaba, torpedoed March 28, 1915 (warned) ; 1 
American lost. 

British ship Lusitania, torpedoed May 7, 1915 (no warning) ; 
114 Americans lost. 



Published in the Congressional Record, 65th Congress, 1st 
Session, p. 1006 (April 23, 1917). 

256 



APPENDIX 257 

American ship Gulflight, torpedoed May 1, 1915 (no warn- 
ing) ; 2 Americans lost. 

British ship Armenian, torpedoed June 28, 1915 (ordered to 
stop; tried to escape); 23 Americans lost. 

British ship Iberian, sunk July 31, 1915 (tried to escape; 
stopped by shell fire) ; 3 Americans lost. 

British ship Anglo-Calif ornian, sunk July 4, 1915; 2 Ameri- 
cans lost. 

British ship Hesperian, torpedoed September 4, 1915 (no 
warning) ; 1 American lost. 

British ship Arabic, torpedoed August 19, 1915 (no warn- 
ing) ; 3 Americans lost. 

British ship Persia,, believed to have been torpedoed; sunk 
December 30, 1915 (no warning) ; 2 Americans lost. 

Italian ship Ancona, torpedoed November 9, 1915 (no warn- 
ing) ; 7 Americans lost. 

British ship Englishman, torpedoed March 27, 1916; 6 
Americans lost (1 more whose nationality is doubtful). 

British ship Sabota, sunk by gunfire October 20, 1916; 1 
American lost. 

British ship Marina, sunk by gunfire October 28, 1916 
(warned) ; 8 Americans lost. 

British ship Russian, torpedoed December 14, 1916 (no 
warning) : 17 Americans lost. 

British ship Eaveston, sunk by shell fire February 5, 1917; 
1 American lost (1 other whose nationality is doubtful). 

British ship Vedamore, torpedoed February 7, 1917 (no 
warning) ; 10 Americans lost. 

British ship Turino, torpedoed February 7, 1917 (no warn- 
ing) ; 1 American (?) lost. 

French ship Athos, torpedoed February 22, 1917 (no warn- 
ing) ; 1 American lost. 

British ship Laconia, torpedoed February 26, 1917 (no warn- 
ing) ; 8 Americans lost. 

Norwegian ship Sjostad, believed torpedoed March 2, 1917 
(no warning) ; 1 American lost. 



258 AMERICA'S CASE AGAINST GERMANY, 

American ship Vigilanda, torpedoed March 16, 1917 (no 
warning) ; 5 Americans lost. 

American ship Healdton, torpedoed March 21, 1917 (no 
warning) ; 7 Americans lost. 

British ship Crispin, torpedoed March 29, 1917 (no warn- 
ing) ; 68 Americans on board, 1 killed, 18 missing. 

Total, 226 American lives lost. 

On the Lusitania there were also 24 children born of foreign 
parents on American soil. 

Carib (American), February 23, 1915 (mined); 1 Ameri- 
can lost. 

Koophandel (Belgian), August 1, 1915 (torpedoed); 1 
American lost. 

Batavier V (Dutch), May 16, 1916 (mined) ; 1 American lost. 

Alaunia (British), October 19, 1916 (possibly mined); 1 
American lost (statement unreliable). 

Cabotia (British), October 20, 1916 (torpedoed); 1 Ameri- 
can lost. 

Palermo (Italian), December 2, 1916 (torpedoed); 1 Ameri- 
can lost. 

Galgorm Castle (British), February 27, 1917 (torpedoed); 
2 Americans lost. 

Argo (Portuguese), March 23, 1917 (torpedoed); 3 Ameri- 
cans lost. 

Aztec (American), April 1, 1917 (torpedoed); 28 missing. 
Number of Americans lost not established. 



INDEX 



Admiral Ganteaume, the, sunk 
by submarine, 229. 

Algonquin, sinking of the, 217. 

Allies, cause of that of U. S., 
3, 222; reply of to peace 
proposals, 196. 

American Civil War, starva- 
tion as method of warfare, 
37; and doctrine of continu- 
ous voyage, 45; and use of 
neutral flags, 56. 

Ancona, sinking of the, 138 ff; 
punishment for submarine 
commander, 188 n. 

Anglo-Calif ornian, the, at- 
tacked by submarine, 88, 
94 n. 

Arabia, sinking of the, 193. 

Arabic, sinking of the, 97, 148, 
176, 229; German excuse 
for, 100 ff . 

Armed merchant vessels, 31 n, 
65; German policy towards, 
150, 153 ff; and Lusitania 
notes, 160; American pro- 
posals, 161 ff ; congressional 
resolution, 163; President 
Wilson's letter on, 164; final 
position of U. S., 165. 



Armed neutrality, 211 ff; in- 
adequacy of, 218 ff. 

Armenian, the, sunk by sub- 
marine, 87, 94 n. 

Asquith, H. H., 14. 

Athos, sinking of the, 208 n. 

Austria-Hungary, and Decla- 
ration of London, 42; muni- 
tion shipments, 126; sub- 
marine campaign, 138; An- 
cona incident, 141 ff ; sub- 
marine pledges, 144. 

Aztec, sinking of the, 217 n. 

Baty, T., quoted, 13 n. 

Belgium, invasion of, 3, 135. 

Bernstorff, Ambassador, 35, 
75 n, 84 n, 108, 228; note on 
Arabic, 99; and dumdum 
bullets, 113; and munition 
shipments, 116 ff ; subma- 
rine pledges, 147; handed 
passports, 206. 

Berwindale, sinking of the, 171. 

Bethlehem Steel Company and 
submarine parts, 114. 

Bismarck, Prince, 37. 

Blockade, requirements for 
legal, 24; by submarines, 
11 ff. 



259 



260 



INDEX 



Bryan, Secretary of State, pro- 
posals to belligerents for 
concessions, 31; on use of 
neutral flags, 55; resignation 
and Lusitania case, 81 n. 

Caprivi, Count, 37. 

Cecil, Lord Robert, 228, 230, 
231. 

Chemung, sinking of the, 194. 

City of Memphis, sinking of 
the, 217. 

Columbian, sinking of the, 193. 

Combatants and noncombat- 
ants, distinction between, 
4 ff, 227. 

Congress, called in special ses- 
sion, 218. 

Congressional resolution on 
armed merchantmen, 163. 

Continuous voyage, doctrine 
of, 45 ff . 

Contraband, absolute and con- 
ditional, 17 ff; England's at- 
titude toward, 45. 

"Conversations" over Lusita- 
nia, 149. 

Crimean War and doctrine of 
continuous voyage, 45. 

Cushing, the, attacked by 
German aeroplane, 60, 71, 
75, 76. 

Cymric, sinking of the, 189. 

Declaration of London, disre- 
gard of by England, 17, 82; 
submarine campaign, 31; 



purpose of, 41; ratification 
by U. S., 42; in French and 
German naval codes, 42; 
continuous voyage, 45; de- 
struction of prizes, 53, 63. 

Declaration of Paris, 156. 

Declaration of War by Con- 
gress, 223. 

Decree of January 31, 1917, 
unrestricted submarine war- 
fare, 168, 196 ff. 

Democracy, cause of Allies 
and U. S., 3 ff, 222 ff. 

Destruction of Prizes, 47 ff . 

Deutschland, the, and Amer- 
ican neutrality, 192. 

Diplomatic relations with Ger- 
many, threatened break, 
179; actual break, 206. 

Eagle Point, sinking of the, 171. 
Englishman, sinking of the, 
171. 

Falaba, sinking of the, 60, 72, 
76, 94 n. 

Famine, as method of warfare, 
26 ff, 40, 127. 

Food supply of Germany, 230. 

Franco-Prussian War and mu- 
nition shipments, 120. 

French Arms Debate, 120. 

Frye, William P., destruction 
of the, 28 n, 60; German 
liability under treaties, 61, 
89 n, 104, 106; referred to, 
148 n, 209, 229. 



INDEX 



261 



Garner, James W., quoted, 
49, 51, 96 n, 128 n. 

Geneva Conventions, 48. 

Gerard, Ambassador, 86, 104 n, 
170, 207. 

German Embassy, advertised 
warning concerning war 
zone, 70. 

German Prize Code, 54, 61. 

German theory of the state, 3. 

German War Book, 3. 

Germany, alliance with Mex- 
ico and Japan against U. S., 
5, 215; violations of inter- 
national law, 5 ff ; war zone 
decree, 16 ff; decree control- 
ling food stuffs, 27 n, 45; 
refusal of American propo- 
sals for concessions, 33, 74 n; 
and Declaration of London, 
42; submarine pledges to 
U. S., 97 ff, 147; munitions 
of war, 116 ff, 126; armed 
merchantmen, 163; Sussex 
case, 171 ff ; peace proposals, 
196; diplomatic relations 
broken, 206; war declared, 
223. 

Great Britain, violations of 
international law by, 8, 90; 
American proposals for con- 
cessions, 74 n. 

Gulflight, sinking of the, 60, 
72, 75, 86, 94 n. 

Hague Conventions, and de- 
struction of prizes, 50 ff ; 
trade in munitions, 117 ff. 



Healdton, sinking of the, 

217 n. 
Hesperian, torpedoing of the, 

101 ff . 
Higgins, A. Pearce, quoted, 

157. 
Hospital ships, immunity of, 

9n, 48. 
Housatonic, sinking of the, 209. 

Illinois, sinking of the, 217. 

Imperator, the, sunk by sub- 
marine, 151 n. 

Institute of International Law, 
157. 

International Law, violations 
of by Germany, 3, 4, 36; by 
Great Britain, 17, 43 ff, 90; 
changes during war, 134. 

International Prize Court, 41. 

Japan, alliance with Mexico 
and Germany against U. S., 
5, 215. 

Jefferson, Thomas, 118. 

Kansas, the, stopped by the 

U-53, 191. 
Karlsruhe, the, 27 n, 229. 
Kronprinz Wilhelm, the, 229. 

Laconia, sinking of the, 217, 
220. 

La Follette, Senator, 35 n. 

Lansing, Secretary of State, 
54 n; last note on Lusitania, 
89; on use of submarines 
against commerce, 93, 94 n; 



262 



INDEX 



on sinking of the Arabic, 99 ff, 
108; letter to Senator Stone, 
115; note to Austria on mu- 
nitions, 129 ff; proposals as 
to armed merchantmen, 161; 
final position, 165. 

Leelanaw, sinking of the, 89. 

Leo, sinking of the, 88, 107 n. 

"Liners," meaning of, 105 ff. 

London Naval Conference, 42. 

Lusitania, the, use of Ameri- 
can flag by, 54, 57; sinking 
of, 60 ff ; note of U. S., 66 ff ; 
German reply, 72 ff ; second 
note of U. S., 75, 94 n; Ger- 
man rejoinder, 81 ff; "con- 
versations" over, 96; and 
contraband, 97; German de- 
fense, 108; settlement, 149; 
punishment for commander, 
188 n; referred to, 87, 88, 89, 
176, 177 n, 220, 225. 

Lyman M. Law, sinking of the, 
209. 

Manchester Engineer, sinking of 

the, 171. 
Maria, the, destruction of by 

a German cruiser, 27 n, 229. 
Marina, sinking of the, 192. 
Marshall, Chief Justice, 155. 
Merchant vessels, immunity of 

from destruction without 

warning, 21 ff, 47 ff ; right to 

arm, 153 ff; conversion into 

warships, 153, 156. 
Mexico, alliance with Japan 

and Germany against U. S., 



5, 215; American embargo 
on arms to, 112, 124. 

Meyer-Gerhard, Dr. Anton, 
85 n. 

Monroe Doctrine, 5. 

Morgan, J. H., quoted, 13 n. 

Munitions, trade in, 109 ff ; 
protests by Germany, 25, 35; 
and Prussian-American trea- 
ties, 62 ff ; and American in- 
terests, 131 ; on Lusitania, 73. 

Munition ships, 219. 

Napoleonic Wars and Amer- 
ican neutrality, 118. 

Nebraskan, the, damaged by 
torpedo, 85 ff, 94 n. 

Nereide, the, 155. 

Neutral flag, use of by Eng- 
land, 30; by belligerent 
ships, 54 ff ; protest by U. S., 
55; British reply, 56. 

Neutral vessels, destruction of, 
52 ff. 

Neutrals, trade with, 46. 

Normandy, the, 88, 107. 

Olympia, the, escape from tor- 
pedo, 13. 

Orders in Council, 137, 225. 

Orduna, the, escape from tor- 
pedo, 88, 94 n, 107 n. 

Overt acts, 210 ff. 

"Paper blockades," 24. 
Patria, sinking of the, 170. 
Peace proposals by President 
Wilson, 195 ff. 



INDEX 



263 



Persia, sinking of the, 146, 148. 

Petrolite, the, shelled by sub- 
marine, 146 n. 

Pinzon; the, 122. 

Prinz Eitel Frederick, the, 61, 
229. 

Prussian-American Treaties, 
61, 89 n, 104, 137 n, 207. 

Realpolitik, 82. 

Reprisals, 225. 

Retaliation, right of, 17 ff, 
91 n, 224 ff. 

Rousseau, J. J., 227. 

Rowanmore, sinking of the, 192. 

Russo-Japanese War, war 
zones in, 11 ff; destruction 
of neutral prizes, 52 ff ; sale 
of munitions during, 115. 

Russian, sinking of the, 194. 

Russian Revolution, 235. 

Schneider, Commander, 102. 

Schurz, Carl, 120. 

Seward, Secretary, 119. 

Sherman anti-trust law and 
German plots, 221. 

Silius, sinking of the, 170. 

Smith, Munro, quoted, 226, 
231. 

Spanish American War and 
munition shipments, 121. 

Starvation as method of war- 
fare, 197, 227. 

Slephano, sinking of the, 191. 

Stone, Senator, 115, 163, 219. 

"Strict accountability " note of 
U. S., 20 ff, 56 n, 108. 



Submarine mines, and Hague 
Conventions, 12; laid by 
England, 15; by Germany, 
15. 

Submarine warfare, and inter- 
national ruthlessness, 2; ad- 
mission by Germany of ille- 
gality, 33; unfitness for use 
against commerce, 68; and 
dictates of humanity, 69; as 
valid means of retaliation, 
90, 226; in the Mediterra- 
nean, 138 ff; Austrian 
pledges, 144 ; German 
pledges, 147; as new weapon, 
228 ff . 

Sussex, sinking of the, 8, 92, 
106, 148, 171; Germany's 
defense, 172; President Wil- 
son's note, 173; threatened 
break, 179, 202; Germany's 
reply, 181; qualified pledge, 
186; pledge withdrawn, 199. 

Thrasher, Leon C, 60. 
Tubantia, sinking of the, 170. 

U-5S, the, sinkings by off New- 
port, 190. 

United States, protest against 
war zone decree, 20 ff, 80; 
proposals for mutual con- 
cessions, 31 ff; and Declara- 
tion of London, 41 ff ; and 
neutral flags, 54 ff; diplo- 
matic victory, 103; attitude 
on armed merchantmen, 
153 ff; final position on 



264 



INDEX 



armed merchantmen, 165 ff; 
and armed neutrality, 211 ff; 
declaration of war by, 223. 

Vigilancia, sinking of the, 217. 
Ville de la Ciotat, sinking of 

the, 147. 
Viviani, Rene, quoted, 233. 
Von Tirpitz, Admiral, 16, 229. 

War as struggle between states, 
227. 

War zones, legality of, 11 ff; 
declaration of by Great 
Britain, 13; by Germany, 
16 ff, 47; protest of U. S., 
20; German policy in, 65. 

White, Andrew D., 122. 

Wilhelmina, the, seizure of by 
British cruiser, 27 n. 

Wilson, Woodrow, on justifica- 
tion of war, 2; war address to 
Congress, 6, 237 ff ; note on 



Sussex, 9; on Lusitania, 
66 ff ; on trade in munitions, 
116 ff ; on sinking of Ancona, 
139; letter to Senator Stone 
on armed merchantmen, 
163; peace proposals, 195 ff; 
severs diplomatic relations, 
206; and armed neutrality, 
211 ff; asks for declaration of 
war, 222; peace loving pres- 
ident, 234. 

Yarrowdale, American prison- 
ers from the, 207. 

Yasaka Maru, sinking of the, 
147. 

Zimmermann, Dr. Alfred, pro- 
posals of Japanese-Mexican 
alliance against U. S., 5, 
215; statement on submarine 
warfare, 194. 



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